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TRIBAL CUSTOM IN ANGLO-SAXON LAW




                              TRIBAL CUSTOM
                           IN ANGLO-SAXON LAW

                     BEING AN ESSAY SUPPLEMENTAL TO
                   (1) ‘THE ENGLISH VILLAGE COMMUNITY’
                    (2) ‘THE TRIBAL SYSTEM IN WALES’

                                   BY
                     FREDERIC SEEBOHM, LL.D., F.S.A.

                        LONGMANS, GREEN, AND CO.
                       39 PATERNOSTER ROW, LONDON
                           NEW YORK AND BOMBAY
                                  1902

                          [All rights reserved]




PREFACE


To the two former Essays, on ‘The English Village Community’ and ‘The
Tribal System in Wales,’ is now at last added in this volume a third on
‘Tribal Custom in Anglo-Saxon Law.’

In the first Essay an attempt was made to approach the early
Anglo-Saxon evidence from the point of view of the Manorial system, and
mainly by tracing back its connection with the open field system of
agriculture--the shell, so to speak, in which it had all along apparently
lived.

The object of this third Essay in the trilogy is to approach the
Anglo-Saxon laws from the point of view of tribal custom.

As a preliminary to this attempt, a detailed study of Cymric tribal
custom was made in the intermediate Essay in the belief that the
knowledge so gained might be used as a clue to the understanding of
survivals of tribal custom in the laws of the tribes most nearly allied
to the invaders of Britain, and lastly in the Anglo-Saxon laws themselves.

The interval which has elapsed between the publication of the three
Essays has made it necessary to make each of them, to some extent,
independent and complete in itself.

It thus becomes necessary in this volume briefly to repeat, as well as
further to develop, what was learned of Cymric tribal custom in the
previous volume, especially as regards the ‘gwely,’ or family unit of
tribal society, and as regards the methods of payment of the galanas, or
death-fine for homicide in lieu of the blood-feud between kindreds.

The death-fine or wergeld of the Continental tribes forms so important
a test of the position of classes in tribal society that it became
necessary to ascertain at the outset what were the currencies in which
the wergelds were stated and paid. A brief explanation of these will be
found in the first chapter.

Then follows the summary of the Cymric evidence. And as some of the
points connected with the payment of wergelds can only be rightly
understood when regarded from the point of view of the blood-feud for
which the wergeld was a substitute, the Cymric evidence is followed by
a brief examination of the rules of the feud incidentally revealed in
‘Beowulf.’

A chapter on Irish or Goidelic tribal custom completes the preliminary
evidence.

The inquiry into the tribal custom of the Continental tribes as revealed
in their laws is proceeded with in the following order:--

First the Burgundian and Wisigothic laws are briefly examined, as showing
most clearly the disintegration of tribal custom caused by early contact
with Roman and Christian influences.

Next are examined the traces of tribal custom in the laws of the Salic
and Ripuarian Franks and of the tribes conquered by the Merovingian
Kings. Separate consideration is then given to the laws of the tribes
conquered by Charlemagne.

The earliest Norse and Scanian laws next claim a full share of attention;
for, although much later in date than the others, they exhibit earlier
conditions of tribal custom.

Lastly, after a short chapter on tribal custom in the ancient laws of
Scotland and the ‘leges inter Brettos et Scotos,’ attention is turned to
the Anglo-Saxon laws, and they are approached from the tribal point of
view and the vantage-ground afforded by the previous study of the tribal
customs of the Continental tribes.

That by this method of study some fresh light may have been thrown on the
conditions of early Anglo-Saxon society I think the reader will admit.
And imperfectly as the work has been done, the bringing of Anglo-Saxon
evidence more into line with the Continental evidence will, I think, be
accepted as a permanent gain.

After all, we are but trying to advance a step or two further, as
regards some particular points, the general intention of the masterly
contributions of Dr. Konrad von Maurer, made nearly half a century ago to
the _Kritische Ueberschau_, which I think have hardly been sufficiently
kept in view by English historical students.

How far the evidence contained in this Essay may be found on full
consideration to modify previous views of others or my own the reader
will be left to judge. I have tried throughout to bring an open mind
to the inquiry from a fresh point of view, with but little regard to
foregone conclusions. Any new facts elicited will find their proper place
without displacing those already known, however much they may ultimately
modify the conclusions provisionally drawn from the latter.

The method of inquiry from the known to the unknown is essentially a
tentative method. It necessarily leads to results which, if isolated,
easily mislead and may be still more easily misapprehended. But
correction comes with perseverance in the same method from other points
of view, whilst in the intermediate stages of such an inquiry the student
has to learn to be content sometimes with a provisional restatement of a
problem rather than a premature solution.

It would be absurd to pretend that, were it necessary to rewrite the
Essay on ‘The English Village Community’ after an interval of nearly
twenty years, modification of many points might not be needful. But as
further editions were called for, it seemed best to leave it as it was,
a link in a chain of inquiry which has not yet come to an end. Other
links have been added by far more competent inquirers, and these have
generously given it a place in the chain from which it would indeed be
ungrateful in me to wish to unlink it. But I venture to hope that the
addition of this third Essay will be accepted not only as a further
contribution to the understanding of a difficult subject, but also as
evidence that kindly criticism of the former volumes has not been thrown
away.

For constant help in the preparation of this volume I am indebted to my
son, whose essay on ‘The Structure of Greek Tribal Society’ really ought
to form one of this series. My thanks are due to Dr. ATKINSON and Prof.
RHYS for help as regards the Irish and Welsh chapters; and to Mr. CRAIGIE
for careful revision of the text and translations of the passages quoted
from the early Norse laws. To Prof. LIEBERMANN and Mr. W. H. STEVENSON,
for help in the reading of some difficult passages in the Kentish laws, I
am especially indebted. I regret very much that I have not had the help
which Prof. LIEBERMANN’S notes to his text of the Anglo-Saxon laws would
have been. To Mr. F. G. HILL, of the British Museum, I owe very much in
connection with the study of the currencies used in the various laws.
Finally, I cannot too warmly express my gratitude especially to Prof.
VINOGRADOFF, Prof. MAITLAND, and Mr. W. J. CORBETT, amongst others, for
the help and encouragement which only fellow-workers can give to the
otherwise solitary student.

  THE HERMITAGE, HITCHIN:
  _January 1, 1902_.




CONTENTS


  SECT.                                                               PAGE

                               CHAPTER I.

        _THE CURRENCY IN WHICH WERGELDS WERE RECKONED AND PAID._

     I. CONNECTION BETWEEN THE WERGELD OF 100 HEAD OF CATTLE AND
        THE MINA OF 100 GOLD STATERS                                     1

    II. THE SAME EQUATION REPEATED BETWEEN THE WERGELDS OF WESTERN
        TRIBES AND 200 GOLD SOLIDI OF CONSTANTINE                        5

   III. THE FRANKISH CURRENCY                                            9

    IV. THE NORMAN AND ANGLO-SAXON CURRENCY                             12

     V. THE MINAS WHICH SURVIVED IN USE SIDE BY SIDE WITH THE ROMAN
        POUND                                                           13

    VI. THE USE OF GOLD TORQUES AND ARMLETS, ETC., INSTEAD OF COINS     17

                               CHAPTER II.

                    _SUMMARY OF THE CYMRIC EVIDENCE._

     I. THE UNIT OF CYMRIC TRIBAL SOCIETY                               21

    II. THE CONSTITUTION AND WORKING OF THE GWELY                       23

   III. THE LIABILITY OF THE WIDER KINDRED FOR GALANAS IN CASE
        OF HOMICIDE                                                     30

    IV. THE FISCAL UNIT FOR THE PURPOSE OF FOOD-RENTS TO THE
        CHIEFTAINS                                                      33

     V. THE METHOD OF PAYMENT OF GALANAS BETWEEN KINDREDS               42

    VI. THE AMOUNT OF THE CYMRIC GALANAS                                46

   VII. THE METHODS OF TREATMENT OF STRANGERS OR NON-TRIBESMEN          50

                              CHAPTER III.

  _THE EVIDENCE OF BEOWULF ON TRIBAL CUSTOM REGULATING FEUDS &c._,      56

                               CHAPTER IV.

                  _TRIBAL CUSTOM OF THE IRISH TRIBES._

     I. THE ERIC FINE OF THE BREHON LAWS                                73

    II. THE HONOUR-PRICE (ENECLANN)                                     80

   III. THE GRADATIONS IN RANK UNDER THE BREHON LAWS                    83

    IV. THE CURRENCY IN WHICH THE BREHON FINES WERE PAID                97

     V. THE IRISH COIRP-DIRE AND HONOUR-PRICE TRACED FURTHER BACK
        THAN THE BREHON LAWS                                           100

    VI. THE BRETON OR GALLIC WERGELD OF THE SO-CALLED ‘CANONES
        WALLICI’                                                       105

   VII. THE WERGELD OF ANCIENT GAELIC CUSTOM. THE EVIDENCE OF CÆSAR    115

                               CHAPTER V.

          _THE WERGELDS OF THE BURGUNDIAN AND WISIGOTHIC LAWS._

     I. THE BURGUNDIAN WERGELDS                                        121

    II. THE WERGELDS OF THE LEX WISIGOTHORUM                           126

                               CHAPTER VI.

          _TRIBAL CUSTOMS OF FRANKS AND OF THE TRIBES CONQUERED
                       BY THE MEROVINGIAN KINGS._

     I. THE WERGELDS OF THE LEX SALICA                                 131

    II. THE DIVISION OF CLASSES AS SHOWN BY THE AMOUNT OF THE WERGELD  147

   III. TRIBAL RULES OF SUCCESSION IN ‘TERRA SALICA’                   150

    IV. THE WERGELDS AND DIVISION OF CLASSES IN THE ‘LEX RIPUARIORUM’  163

     V. THE ALAMANNIC AND BAVARIAN LAWS                                172

                              CHAPTER VII.

        _TRIBAL CUSTOMS OF THE TRIBES CONQUERED BY CHARLEMAGNE._

     I. THE EFFECT UPON WERGELDS OF THE NOVA MONETA                    179

    II. THE LEX FRISIONUM                                              194

   III. THE LEX SAXONUM                                                213

    IV. LEX ANGLIORUM ET WERINORUM, HOC EST THURINGORUM                224

     V. THE SO-CALLED LEX CHAMAVORUM                                   229

    VI. CONCLUDING REMARKS                                             231

                              CHAPTER VIII.

          _THE TRIBAL CUSTOMS OF THE OLDEST SCANDINAVIAN LAWS._

     I. THE MONETARY SYSTEM OF SCANDINAVIA                             233

    II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAW              238

   III. THE GRADATIONS OF SOCIAL RANK DISCLOSED BY THE WERGELDS ETC.   260

    IV. THE CLASSES OF FREE MEN AND THEIR RELATION TO LAND             271

     V. THE LEX SCANIA ANTIQUA                                         276

    VI. SCANIAN AND LOMBARDIC CUSTOM COMPARED                          292

                               CHAPTER IX.

                      _TRIBAL CUSTOM IN SCOTLAND._

     I. TRACES OF TRIBAL CUSTOM IN THE LAWS OF THE EARLY KINGS         297

    II. THE ‘REGIAM MAJESTATEM’                                        302

   III. ‘LEGES INTER BRETTOS ET SCOTOS’                                307

    IV. RECOGNITION OF THE FOURTH AND NINTH DEGREES OF KINDRED
        IN SCOTLAND                                                    318

                               CHAPTER X.

           _ANGLO-SAXON CUSTOM FROM THE NORMAN POINT OF VIEW._

     I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS                       321

    II. NORMAN VIEW OF WESSEX CUSTOM                                   325

                               CHAPTER XI.

                  _DANISH VIEW OF ANGLO-SAXON CUSTOM._

     I. THE ‘DE INSTITUTIS LUNDONIE’--OF CNUT (?)                      337

    II. FRAGMENT ‘OF “GRITH” AND OF “MUND”’                            344

   III. THE ‘FRITH’ BETWEEN ETHELRED II. AND OLAF TRYGGVASON,
        A.D. 993                                                       349

                              CHAPTER XII.

                 _ANGLO-SAXON CUSTOM FROM THE VIKING OR
                       NORTHMEN’S POINT OF VIEW._

     I. THE COMPACT BETWEEN KING ALFRED AND GUTHRUM, A.D. 886          351

    II. THE COURSE OF PROCEDURE IN PAYMENT OF WERGELD                  356

   III. FRAGMENTS OF MERCIAN AND NORTH PEOPLE’S LAW                    360

                              CHAPTER XIII.

                       _EARLY ANGLO-SAXON CUSTOM._

     I. KING ALFRED’S DOOMS                                            370

    II. THE DIALOGUE OF EGBERT, ARCHBISHOP OF YORK, A.D. 732-766.
        ECCLESIASTICAL OATHS AND WERGELDS                              377

   III. THE DOOMS OF INE, A.D. 688-725                                 386

    IV. THE POSITION OF STRANGERS IN BLOOD UNDER KING INE’S
        LAWS--THE SIX-HYNDEMAN                                         396

     V. THE TWELVE-HYNDE AND TWY-HYNDE MEN AND THEIR HYNDENS OF
        OATH-HELPERS                                                   406

    VI. THE GESITHCUND AND CEORLISC CLASSES IN THEIR CONNECTION
        WITH LAND                                                      417

   VII. COMPARISON OF WESSEX AND MERCIAN WERGELDS WITH THOSE OF
        CONTINENTAL TRIBES                                             436

                              CHAPTER XIV.

                    _THE LAWS OF THE KENTISH KINGS._

     I. DISTINCTION FROM ANGLO-SAXON LAWS, A.D. 596-696                440

    II. THE SCÆTTS AND SCILLINGS OF THE KENTISH LAWS                   443

   III. THE LAWS OF ETHELBERT                                          455

    IV. THE LAWS OF HLOTHÆRE AND EADRIC, A.D. 685-6                    467

     V. THE LAWS OF KING WIHTRÆD, A.D. 690-696                         476

    VI. THE DIVISION OF CLASSES UNDER KENTISH CUSTOM                   481

   VII. THE AMOUNT OF THE KENTISH WERGELDS                             487

  VIII. RESULT OF THE KENTISH EVIDENCE                                 492


                               CHAPTER XV.

  _GENERAL CONCLUSIONS_                                                496


  INDEX                                                                533




[Illustration]




CHAPTER I.

_THE CURRENCY IN WHICH WERGELDS WERE RECKONED AND PAID._


I. CONNECTION BETWEEN THE WERGELD OF 100 HEAD OF CATTLE AND THE MINA OF
100 GOLD STATERS.

[Sidenote: The currencies in which wergelds were paid.]

The inquiry pursued in this volume partakes so much of the character of
a study of the wergelds of the various tribes of North-western Europe
that it becomes necessary as briefly as possible to call attention at the
outset to the currencies in which they were reckoned and paid.

[Sidenote: Cows.]

The Cymric galanas or death fine was reckoned in cows, and the cows were
equated with silver.

[Sidenote: Female slaves.]

The Irish ‘eric’ of the Brehon laws was stated in _cumhals_ or female
slaves, and lesser payments in cows and heifers, and these were all
equated with silver.

[Sidenote: Silver.]

The Anglo-Saxon wergelds were stated, with perhaps one exception, in
silver scillings.

The wergelds of the Scandinavian tribes were generally stated in their
laws in silver marks, ores, and ortugs, with the equivalent in gold at a
ratio of 1:8, and also in cows.

[Sidenote: Gold solidi.]

Those of the Continental German tribes were generally stated in gold
solidi, but the statements were sometimes supplemented by clauses
describing the value of the animals, whether oxen or cows, in which the
payments were, in practice, still evidently made, at the date of the laws.

[Sidenote: Early equation between cattle and gold.]

Professor Ridgeway[1] has shown that the equation between cattle and gold
may go back a long way into the past of Eastern tradition. The result of
his careful inquiry was the brilliant suggestion that the ox--the most
usual unit of payment in agricultural countries--was very early and very
generally equated in Assyrian, Babylonian, Persian, and Greek usage with
the gold stater or didrachma.

[Sidenote: Greek stater the ox-unit.]

The stater was reckoned in Greek usage as of 192 wheat-grains.[2] It was
divided into 6 diobols of 32 wheat-grains. And throughout the East the
usual multiples of the stater were the _light mina_ of 50 staters and the
_heavy mina_ of 100 staters or 19,200 wheat-grains.[3]

Now if the gold stater of 192 wheat-grains is to be recognised as the
ox-unit in traditional equations between cattle and gold, another very
important recognition suggests itself.

[Sidenote: Normal wergelds of 100 head of cattle]

Wergelds being first paid in cattle, it was natural that a round number
of cattle should be chosen, and instances are not wanting in the Eastern
world suggesting that ‘a hundred head of cattle’ was a customary normal
wergeld of wide prevalence.

Among the Arabs to this day Professor Robertson Smith states[4] that the
camel is the unit of payment, and that, in a feud between two Meccan
tribes, the manslayer has the alternative of paying 100 camels or
bringing 50 of his kin to take oath of purgation, or lastly of abiding
the blood-feud.

According to the laws of Manu, if one of the highest of the twice-born
Brahman class slew one of the Warrior class involuntarily, he might
cleanse himself by paying to the Brahmans or priests 1000 cows and a
bull. If he slew one of the agricultural or trading class, the payment
was 100 cows and a bull. If he slew one of the servile class, the payment
was 10 cows and a bull.[5]

In this case 100 cows seem to have been the normal wergeld, and the
wergelds of those of higher or lower caste or rank seem to have been
multiples or fractions of it.

In Homer there are indications of the same thing. Lycaon was sold as
a captive for 100 oxen and redeemed as a chieftain’s son for 300
oxen--being apparently valued at a threefold wergeld on account of his
recognised princely rank.

    Iliad, XXI. 39. ‘And at that time he sold him into well-peopled
    Lemnos, sending him on shipboard, and the son of Jason gave a
    price for him and thence a guest-friend freed him with a great
    ransom, Eetion of Imbros, and sent him to goodly Arisbe; whence
    flying secretly he came to his father’s house (at Troy). Eleven
    days he rejoiced among his friends after he was come from Lemnos,
    but on the twelfth once more God brought him into the hands of
    Achilles again.’

    71. ‘Then Lykaon besought him.… At thy table first I tasted
    meal of Demeter on the day when thou didst take me captive in
    the well-ordered orchard, and didst sell me away from my father
    (Priam) and my friends unto goodly Lemnos, and _I fetched thee
    the price of an hundred oxen_. And now I have been ransomed _for
    thrice that_, and this is my twelfth morn since I came to Ilios
    after much pain.’

[Sidenote: The normal wergeld equated with the gold mina of 100 staters.]

Now if a herd of 100 head of cattle had come to be a common normal
wergeld in the Eastern world, and if the gold stater had come to be
regarded as the ox-unit, it follows that the heavy gold mina of 100
staters would easily come to be adopted as a common equivalent for the
wergeld of 100 head of cattle.

Nor are we without examples which show that this connection of the
wergeld with the gold mina was not altogether foreign to traditional
modes of thought.

In the laws of Gortyn[6] a man whose life was forfeit for crime might be
redeemed by his kindred for 100 staters, _i.e._ the heavy gold mina.

The ransom of prisoners between certain Greek tribes or states according
to Herodotus was two minas, _i.e._ one heavy mina.[7]

There is a curious instance in the Mosaic law of the connection of
something like a wergeld with the mina of silver. In the last chapter of
Leviticus the price to be paid for the redemption of a man dedicated by
a vow to the service of the Sanctuary was 50 shekels of silver: that is,
the light mina of silver.


II. THE SAME EQUATION REPEATED BETWEEN THE WERGELDS OF WESTERN TRIBES AND
200 GOLD SOLIDI OF CONSTANTINE.

[Sidenote: The gold solidus of Constantine a half-stater.]

Following the same thread of suggestion and turning from the Eastern to
the Western world, we pass at a leap from the Eastern gold stater of 192
wheat-grains to the gold solidus of Constantine, of exactly half that
number.

Up to the time of Constantine there had been confusion in the currency of
the Roman Empire. It had been mainly a silver currency. Few gold coins
were in general circulation, and these were of various standards. But at
last the gold solidus of Constantine placed the world in possession of a
fixed gold standard acknowledged all over Europe and remaining unchanged
till the fall of the Eastern Empire.

The importance of this fact is obvious. For our knowledge of most of the
wergelds of the tribes conquered by the Merovingian Franks and later
on by Charlemagne is dependent upon it, inasmuch as the laws in which
the customs of these tribes were in some sense codified, almost always
describe the wergelds in gold solidi.

The gold solidus of Constantine was fixed by him at 1/72 of the Roman
pound or ⅙ of the Roman ounce.

The Roman pound (originally used for copper) was built up from the
scripulum according to the duodecimal system of the _As_, thus:

  Scripulum         24 wheat-grains = 1·135 grammes
  Uncia (of 24)    576      ”       = 27·25    ”
  Libra (of 288)  6912      ”       = 327·     ”

[Sidenote: Gold tremisses of 32 wheat-grains.]

The solidus of Constantine therefore contained 96 wheat-grains of gold,
exactly the same number as the Eastern drachma, and half that of the
stater or didrachma. At the same time smaller coins--thirds of the
solidus, called _trientes_ or _tremisses_--were issued in great numbers,
and these tremisses contained 32 wheat-grains of gold, exactly the same
number as the Greek _diobol_.

[Sidenote: The normal wergeld of 200 gold solidi = gold mina.]

So that, in wheat-grains, the very prevalent statement of the wergeld
of the full freeman in the laws of various tribes as 200 gold solidi
was in fact the same thing as a statement that the wergeld was a _heavy
gold mina_, for 200 solidi of 96 wheat-grains contained exactly the
same number of wheat-grains as did the heavy mina of ancient Eastern
usage--viz. 19,200. In other words, so persistent seems to have been the
traditional connection of the wergeld with the gold _mina_ that Roman
monetary usage was overruled, and instead of reckoning in Roman drachmas,
ounces, and pounds, the wergelds were reckoned once more, or perhaps we
should say continued to be reckoned, in what was really the heavy gold
_mina_ of 200 solidi.

[Sidenote: And was often the equivalent of 100 oxen.]

Further than this, in the laws of some of the tribes, as we shall find,
the double solidus or stater still retained its position as the gold
equivalent of the ox, so that the typical wergeld of 200 gold solidi in
these cases was actually, like the _mina_, the gold equivalent of 100
oxen.

Even where variations are found from this prevalent equation we shall
still sometimes find the principle preserved, some other animal being
substituted for the ox, and sometimes the long hundred of 120 being
substituted for the decimal hundred.

[Sidenote: The standard weight of the wheat-grain varied.]

If this had been the whole truth the matter would be simple. But the
fact is that, although the wergeld of 200 solidi of Constantine was the
exact equivalent of the heavy gold mina reckoned in _wheat-grains_, there
were differences in the standard weight of the wheat-grain. As already
mentioned, the actual weights of Eastern and Greek staters were not
exactly alike, and the Roman standard, in actual weight, was higher than
the Eastern and Greek standards.

The latest authorities, Hultsch and Lehmann,[8] on the evidence of
inscribed weights, describe what may for convenience be called the
Eastern gold mina--_i.e._ the _heavy_ gold mina of Assyrian and
Babylonian metrology--as weighing 818 grammes, or 100 staters of 8·18
grammes. They tell us also that there was a _commercial_ mina of 120 of
the same staters. This commercial mina therefore weighed 982 grammes,
and metrologists have inferred that the Roman pound was derived from
this commercial mina being in fact exactly one third of its weight, or
327 grammes.

Now, as the commercial mina contained 120 staters of 8·18 grammes, it is
obvious that the Roman pound, being one third of it, ought to have been
divided, had Eastern reckoning been followed, not, as Constantine divided
it, into 36 staters of 9·08 grammes, but rather into 40 staters of 8·18
grammes.

In other words, had Constantine, instead of following the Roman system of
division, followed the Eastern system and divided the Roman pound into 40
staters of 8·18 grammes in weight, his double solidus, whilst containing
192 Eastern wheat-grains, would have contained only 172·8 Roman
wheat-grains. As a matter of fact the Eastern stater of 8·18 grammes, if
put in the Roman scales of Constantine, would have weighed only 172·8
wheat-grains of Roman standard, and the tremisses 28·8 wheat-grains. The
Roman pound would have contained 240 of such tremisses, and the ounce 20
of them.

[Sidenote: The Roman lb. divided into 240 smaller tremisses of 28·8
wheat-grains.]

This is not the place to enter more deeply into the metrological
question, but its interest in this inquiry lies in the fact that in
Western Europe, in spite of Roman conquests and Roman influence, and in
spite of the general knowledge and prevalence of the gold solidi and
tremisses of the Empire, there seems to have been a remarkable tendency,
consciously or unconsciously, to revert to the Eastern standard by
dividing the Roman pound into 40 staters, 80 solidi, and 240 tremisses.

The ancient Gallic gold coinage, extending from the valley of the Danube
across Gaul into Britain, was apparently of this ancient Eastern
standard. And Cæsar himself, after his conquest of Gaul, reverted to
it when he issued gold staters of one fortieth of the Roman pound.[9]
Finally we shall find, in our next section, the Merovingian Franks,
consciously or unconsciously, doing the same.


III. THE FRANKISH CURRENCY.

[Sidenote: The early currency of the Franks mostly gold.]

Most of the laws of the Continental tribes seem to have had their origin
in the necessity to commit into writing what remained of local custom
after Frankish conquest.

Broadly speaking they belong to two periods--the earlier one that of
the conquests of the Merovingian Franks, and the later one that of the
conquests of Charlemagne.

It becomes necessary, therefore, to distinguish between the coinage and
currency of the two periods.[10]

When we turn from the Imperial currency of gold solidi and tremisses to
that of the Frankish princes, we find them using a peculiar system of
monetary reckoning, founded upon the metrical system already alluded to,
of 20 tremisses or pence to the ounce and 240 to the pound.

[Sidenote: At first of Roman solidi and tremisses; afterwards of the
smaller tremisses of 28·8 wheat-grains; then of silver tremisses or pence
of the same weight.]

At first the Merovingian kings seem to have used or copied the Imperial
solidi and tremisses. But before long they issued an abundant gold
currency of their own, consisting almost entirely of tremisses. And
these tremisses were reduced in weight by the division of the Roman pound
of 6912 wheat-grains into 240 tremisses of 1/20 of the ounce, _i.e._ 28·8
instead of 32 wheat-grains. The abundant currency of these lighter gold
tremisses continued till nearly the close of the Merovingian period. And
how abundant this gold currency was, is shown by the fact that nearly
10,000 examples are recorded in the catalogues of Merovingian coins in
public and private collections.

But towards the close of the Merovingian period came one of those strange
monetary changes, so difficult to account for, which before long put an
end altogether to the issue of these gold tremisses.

All through the Merovingian period payments had no doubt been made in
silver as well as in gold, by weight, and during the later part of the
period silver tremisses were issued of the same weight as the gold. And
thus gradually, at first concurrently with the gold tremisses and at last
driving them out, came into use a silver currency of 20 pence to the
ounce and 240 to the Roman pound.

With this silver currency and the following of this weight system came
in apparently the method of silver monetary reckoning, so familiar to
us, of dividing the pound of 240 pence into 20 solidi or shillings of 12
pence--the pound being still the Roman pound of 6912 wheat-grains. This
silver solidus was, however, only one of account and was never issued as
a coin.

[Sidenote: The _nova moneta_ of Charlemagne.]

Finally, just before Charlemagne assumed the title of Emperor another
change was made by the issue of his _nova moneta_.

[Sidenote: His pound of 240 silver tremisses of 32 wheat-grains, and
silver solidus of account of 12 pence.]

The silver currency had by this time become predominant, and in the
capitularies the silver solidus of 12 pence had already come into
use. Charlemagne, in issuing the _nova moneta_, made no alteration
in the method of reckoning, except that he brought the weight of the
silver tremissis or penny back again to the Imperial standard of 32
wheat-grains, thus making his pound of 240 of the new pence 7680
wheat-grains instead of 6912 and the ounce 640 instead of 576.

At the same time we shall find that he tried, by making his _nova moneta_
legal tender, to force the new silver solidus of 12 pence into use as
equivalent, in payments, for the gold solidus of three gold tremisses,
which up to that time had been the solidus of the Salic laws.

[Sidenote: Made legal tender at a ratio of 1:4 with gold.]

This involved the altogether impossible ratio of 1:4 between the two
metals instead of the Imperial ratio of 1:12.

In considering the wergelds of the laws belonging to this period, we
shall find plenty of evidence of the confusion resulting from this
remarkable experiment, made more apparent by the fact that the ratio of
1:12 was restored by one of Charlemagne’s successors.

It has been necessary to trouble the reader with this brief statement of
somewhat complicated facts, because it would be impossible to understand
the wergelds of the various Continental tribes if they were not borne in
mind.

For the understanding of these wergelds the points to be considered will
be:--

(1) As regards the laws, the recensions of which date from Merovingian
times, it will be necessary to ask whether the solidi and tremisses were
of Imperial or of Merovingian standard.

(2) As regards the later laws, the recensions of which date from the
conquests of Charlemagne, we shall have to consider whether the wergelds
are stated in gold solidi and tremisses, or in the silver solidi and
pence of the _nova moneta_ of Charlemagne.


IV. THE NORMAN AND ANGLO-SAXON CURRENCY.

Working back from the known to the unknown, the facts relating to the
Norman and Anglo-Saxon currency, speaking generally, confirm what has
already been said of the Frankish currency, and become intelligible when
the two currencies are considered together.

[Sidenote: The Norman and later Anglo-Saxon pound of 240 pence of 32
wheat-grains.]

In the first place, the Norman and Anglo-Saxon pound at the time of
the Norman conquest was the pound of 7680 wheat-grains of silver or
240 silver pence of 32 wheat-grains, like that of the _nova moneta_ of
Charlemagne, and the Normans, like the Franks, divided it for monetary
purposes into 20 shillings of 12 pence.

At the same time the Normans recognised that the Mercians had all along
reckoned in silver scillings of 4 pence, and the men of Wessex in
scillings of 5 pence.

[Sidenote: The earlier pound of 240 sceatts or silver tremisses of 28·8
wheat-grains.]

If we examine the actual coinage of the Anglo-Saxons we find that, like
that of the Franks, it may be divided into two periods. The earlier one
corresponded to the Merovingian period during which the penny or sceatt
of Mercia and Wessex was of 28·8 wheat-grains, like the silver tremisses
or pence across the Channel.[11] The later period commenced when Offa in
Mercia, followed by Alfred in Wessex, abandoned the ‘sceatt’ and issued
pence like those of the _nova moneta_ of Charlemagne of 32 wheat-grains.

So marked is the distinction between the silver pence of the two periods
in type and weight that they are known by numismatists as the ‘Sceatt
series’ and the ‘Penny series.’

Finally, just as, in the case of the Frankish currency, the pound of 240
sceatts was the Roman pound of 6912 wheat-grains, so the pound of 240 of
the later pence was the pound of the _nova moneta_ of 7680 wheat-grains,
which in England after the Conquest became the standard or Tower pound.

At the same time it must be remembered that the identity or difference in
these cases is in the reckoning in wheat-grains, and that there was room
for some variation in the actual weight of the coins.


V. THE MINAS WHICH SURVIVED IN USE SIDE BY SIDE WITH THE ROMAN POUND.

According to the writers of the Merovingian and later period collected by
Hultsch,[12] the Roman pound was not the only standard of weight which
was in customary use in Europe.

[Sidenote: The gold mina of 200 gold solidi.]

We have seen that the commonly prevalent wergeld of 200 gold solidi was
in fact the same thing, in wheat-grains, as the heavy Eastern and Greek
gold mina of 19,200 wheat-grains. But besides this, there were two other
minas of interest to this inquiry which seem to have been more or less
locally in use, and more or less connected with the wergelds.

[Sidenote: The _mina Italica_ of 240 scripula of 24 wheat-grains or 20
Roman ounces.]

It seems that the Roman pound of 12 ounces was not the only pound in
use in Italy. A still older Roman pound of 10 Roman ounces or 5760
wheat-grains seems to have existed,[13] which was in fact a pound of
240 scripula of 24 wheat-grains. And two of these pounds made what was
called the _mina Italica_ of 20 Roman ounces. This mina Italica survived
into Merovingian times. It contained 480 Roman scripula, and according
to authorities quoted by Hultsch[14] the _scripulum_ was so far a common
unit in Gaul as to have earned the name of the _denarius Gallicus_. The
number of Roman wheat-grains in the mina Italica was 11,520. Its weight
was 545 grammes.

In the Merovingian formulæ and in the early charters of St. Gall there
are constant references to fines of so many _libræ_ of gold and so many
_pondera_ of silver, from which the inference may be drawn that the
pondus of silver was a different weight from the libra of gold. Whether
the older Roman pound or half-mina-Italica was the ‘pondus’ or not,
the fact that it consisted of 240 scripula may possibly have made it a
precedent for the monetary mode of reckoning of 240 pence to the pound,
adopted by the Franks and Anglo-Saxons.

This mina Italica has also a Celtic interest. It is curious to note that
whilst so late as the tenth century the Cymric galanas or wergeld was
paid in cows, the cow was equated with a monetary reckoning in scores of
pence, or _unciæ argenti_, of which twelve made a pound of 240 pence. At
the same time in the Cymric Codes there are mentioned, as we shall find,
two kinds of pence: the _legal_ pence, probably those current at the time
in England of 32 w.g., and the _curt_ pence or scripula of one third
less, viz. 24 w.g. Now, whilst 240 of the former would equal the pound
of the _nova moneta_ of Charlemagne, and of later Anglo-Saxon reckoning,
240 of the _curt_ pence or scripula would equal the older Roman pound or
half-mina-Italica.

Turning from the Cymric monetary system to that of the early Irish
manuscripts and Brehon laws, we shall find that it was based on the
Roman scripulum of 24 wheat-grains, and not, like the Anglo-Saxon and
Frankish system, on the tremissis. And we shall find that though thus
based upon the scripulum and the ounce, when payments were made in gold
and silver, the reckoning, instead of making use of the Roman or any
other pound, counted rather in _scores of ounces_; _i.e._ consciously or
unconsciously, in so many of the mina Italica.

       *       *       *       *       *

[Sidenote: The _mina Attica_ of 16 Roman ounces or 2 marks.]

So much for the _mina Italica_ and its possible Anglo-Saxon and Celtic
connections.

The other mina, the mention of which is important, formed the probable
basis of Scandinavian reckoning in _marks_ instead of in pounds.

The authorities collected by Hultsch describe this mina as of 16 Roman
ounces, and as the ‘_mina Attica_.’[15] It is a fact that 16 Roman ounces
did exactly equal in weight (though not in wheat-grains) the light mina
of 50 Attic staters or 100 drachmas. But under Roman influence this
Attic mina no longer was divided like a mina into 100 drachmas, but had
become twisted, as it were, into 16 Roman ounces and into 96 solidi of
Constantine.

[Sidenote: The mark, ore, and ortug of Scandinavia.]

In Northern Europe, in nearly all the systems of reckoning which survived
from mediæval times, the pound of 12 ounces was ignored. A pound of 16
ounces had taken its place. And this pound or mina of 16 ounces lay, as
we shall find, at the root of the system of the earliest Scandinavian
laws, with its monetary marks, ores, and ortugs, for it was the double of
the _mark_ of 8 ounces. The Russian zolotnic (or ‘gold piece’), on which
the weight system of Russia is based, was theoretically identical in
wheat-grains with the Roman solidus, and the Scandinavian ortug with the
double solidus or stater.

It is not needful to dwell further upon these points at this moment; but
it will become important to recognise the Byzantine or Eastern origin
of the mina of 16 Roman ounces when we come to consider the wergelds of
Northern Europe, and particularly the equation between the Danish wergeld
of 8 half-marks of gold and the silver wergelds of Wessex and Mercia as
described in the compact between Alfred and Guthrum.

In that compact we shall have to recognise not only the contact of two
methods of monetary reckoning widely separated in origin, the one of gold
and the other of silver, but also the clashing of two traditional ratios
between the two metals, viz. the Scandinavian ratio of 1:8, and the
restored Imperial ratio of 1:12 followed by the Anglo-Saxons.


VI. THE USE OF GOLD TORQUES AND ARMLETS, &C., INSTEAD OF COINS.

[Sidenote: Wergelds paid in cattle or gold or silver by weight.]

Although the amounts of the wergelds are generally stated in the laws in
gold or silver currency, more or less directly equated with the cattle in
which they were originally paid, it would be a great mistake to imagine
that the wergelds were often paid actually in coin.

A moment’s consideration makes it clear that a wergeld of a hundred head
of cattle, whether paid as of old in cattle or in gold or silver, was a
payment too large to be paid in _coin_. It was a payment that no ordinary
individual could pay without the aid of his kindred, and it is hardly
likely that so large an amount in actual coin could be collected even
from the kindred of the murderer.

[Sidenote: Gold torques &c. made of a certain weight and used in
payments.]

There is plenty of evidence to show that large payments in gold
and silver were mostly made by weight, and very often in gold
articles--torques, armlets, and bracelets--made to a certain weight.

In the Scald’s tale is the well-known passage:--

  He to me a beag gave
  On which six hundred was
  Of beaten gold
  Scored of sceatts
  In scillings reckoned.

Whether the true meaning be six hundred sceatts or six hundred
scillings, we have here a beag with its weight marked upon it.

The museums of Scandinavia and of Ireland--the two poles of German and
Celtic culture--are full of these gold objects, and very frequently
little coils of fine gold wire are wound round them to raise their weight
to the required standard.

[Sidenote: Gold and silver objects weighing so many mancuses.]

It may be mentioned, further, in passing, that in many early Anglo-Saxon
charters payments and donations are made in gold and silver objects, and
that the weights of these are sometimes stated in so many _mancuses_--the
mancus being apparently a weight of gold or silver of 30 pence, and
equated in the later laws, in its silver value, with the value of the
ox.[16]

[Sidenote: An historical example.]

It may be worth while before concluding this chapter to refer to an
historic example of the use of gold objects of definite weight, and the
adjustment of their value in differing currencies. The incident deserves
to be noticed, and may be of use in helping to fix upon the memory
the difference, so often alluded to, between the Roman pound of 6912
wheat-grains and Charlemagne’s pound of 7680 wheat-grains. It belongs to
the precise moment when Charlemagne, having issued his _nova moneta_, was
contemplating his visit to Rome and the assumption of the Imperial title,
and it has an historical interest as showing that the _nova moneta_ was
issued before the Imperial title was assumed.

Alcuin, who had long resided at the Court of Charlemagne, was now lying
ill at Tours. In order to consult him, probably respecting the Imperial
title, Charlemagne, with his queen Liutgarda, proceeded to visit him at
Tours. Liutgarda was apparently taken ill while there, and died June 4
A.D. 800.

[Sidenote: Alcuin weighs gold bracelets in the scales of the _nova
moneta_.]

During her illness Alcuin sent a messenger to Paulinus, the Patriarch of
Aquileia, with two _armillæ_ of fine gold from Liutgarda,[17] so that he
and his priests might pray for her. He stated in his letter to Paulinus
that these armillæ weighed ‘xxiv. denarii less than a full pound of the
_nova moneta_ of the king.’

Alcuin thus weighed the bracelets in the scales of the _nova moneta_,
and they weighed twenty-four pence less than Charlemagne’s pound of 7680
wheat-grains. The interesting point is that 24 pence of the _nova moneta_
(24 × 32 = 768) deducted from the pound of Charlemagne left exactly 6912
wheat-grains. So that when Paulinus weighed the gold bracelets in his
Roman scales he would find they weighed exactly a Roman pound.[18]

[Sidenote: But in correspondence with Ireland uses Roman weights.]

And yet, though writing from Charlemagne’s Court, Alcuin, when addressing
his ecclesiastical friends in Ireland, no longer used the terms of the
Frankish currency. It was after all a local one. Charlemagne’s Empire
had its limits, and Ireland was beyond them. The area of ecclesiastical
rule was wider than both Empires put together. Alcuin writes that he and
his Imperial master had distributed among the Irish monasteries so many
_sicli_ of silver. The _siclus_, according to the authorities collected
by Hultsch,[19] was equal to two Roman _argentei_ or drachmas of silver.
So that Alcuin used the di-drachma or stater of Roman reckoning as fixed
in the time of Nero, when corresponding with churches outside the Empire
of his Frankish master.

[Sidenote: Archbishop Egbert also uses Roman weights instead of local
ones.]

As we proceed in our inquiries we shall find another great ecclesiastic
(Egbert, archbishop of York and brother of the Northumbrian king) using
the same Roman monetary terms in replying to the question of his clergy
respecting the wergelds to be claimed in taking their proper position
and rank in the Northumbrian kingdom. The answer was given in Roman
_argentei_ and _sicli_, and not in Frankish solidi, or Anglo-Saxon
scillings, or any other local currency.

In conclusion, the various currencies in which wergelds were paid may at
first sight be perplexing, but the relevance of the facts stated in this
chapter to a right understanding of the wergelds of various tribes under
tribal custom, and of the amount of the wergelds to a right understanding
of the constitution of tribal society, will become more and more apparent
as the inquiry proceeds.




[Illustration]




CHAPTER II.

_SUMMARY OF THE CYMRIC EVIDENCE._


I. THE UNIT OF CYMRIC TRIBAL SOCIETY.

The next step in this inquiry will be to give a brief summary of the
results of the evidence contained in the volume on the ‘Tribal System in
Wales,’ adding at the same time such further details as may be useful in
helping us to realise the methods by which tribal custom worked itself
out in practice.[20]

[Sidenote: The Cymric unit of landholding was the gwely.]

The chief fact revealed by the examination of the Extents and Surveys
of different parts of Wales made after the English conquest, taken
together with the Cymric Codes, was that the unit of society and of
land-occupation under Cymric tribal custom was not the individual, and
not the immediate family, but the group of kindred known as the ‘_Wele_’
or ‘_Gwely_.’

Such and such a Villata or District is described in the surveys as in
the occupation of the gwelys of so and so, the Latin word used for gwely
being ‘lectus’ or bed.

[Sidenote: The gwely was a family group of a great-grandfather and his
descendants.]

The form of society thus revealed was _patriarchal_ in the sense that
the common ancestor (generally conceived to be the great-grandfather)
during his life, and even after his death, was regarded as the head of
the _gwely_ or group of his descendants for three generations. In his
name as its head this family group occupied land and had grazing rights
over certain districts, sometimes alone, more often in common with other
family groups.

As to what is meant by land ownership in the full modern sense, the
question may not have arisen, or it might have come in gradually sooner
or later, as agriculture came more and more into prominence. What
property, strictly speaking, the tribesmen owned consisted mainly of
herds of cattle.

Naturally, therefore, what rights over land they may have had were mainly
rights of occupation and grazing in certain districts for their herds.
Their agriculture was secondary, and consisted of the right to plough up
such portions of the waste or common pasture as year by year might be
required for their corn crop. All that need be said at this moment about
their agriculture is that it was an open field husbandry, the result of
the co-ploughing of a common plough-team normally of 8 oxen, the joint
contribution of several tribesmen.

[Sidenote: The young tribesman is dependent on the chief, not on his
father. The tribesmen recover their _da_ or cattle from him as their
chief for their maintenance.]

Returning to the gwely, we find that when a child was born into it,
whether boy or girl, it was formally acknowledged by the kindred. It
remained ‘at the father’s platter’ to a certain age (generally 14), and
then the father ceased to be responsible. The boy at 14 became the ‘man
and kin’ of the chieftain of the family group, or it might be of the
higher kindred embracing several of the gwelys. From that moment the
boy obtained by ‘kin and descent’ a tribesman’s right of maintenance.
That is to say, he received from the chieftain his _da_, probably in
the form of an allotment of cattle,[21] and with it the right to join
in the co-ploughing of the waste. He became thus a tribesman on his own
hook, apart from his father. So that the unit of society was not simply
the family in the modern sense of a parent and his children, but the
wider kindred of the gwely or the group of related gwelys headed by the
chieftain who provided the _da_.


II. THE CONSTITUTION AND WORKING OF THE GWELY.

Now, as the gwely was the unit of land-occupation, it is worth while to
try to realise a little further what it was and how it worked.

[Sidenote: The simplest form of the gwely. The landed rights vested in
the chief, and he gives cattle out of the common herd to tribesmen for
their maintenance.]

Viewed in its simplest, and perhaps original form, it was a family
group of four generations, the landed rights of which were vested in the
great-grandfather as its chieftain.

The tribesmen, his descendants, had only rights of maintenance. By right
of ‘kin and descent’ they had received their _da_ from the chieftain. The
flocks and herds of the chieftain were the common stock out of which the
_da_ had been given, and there is reason to believe that under earlier
custom, on the death of a tribesman, his _da_ went back into the common
stock of the chieftain.

[Sidenote: Probably at first no succession by representation on a
tribesman’s death. But in the codes a _peculium_ admitted which went to
children.]

At the date of the codes it did so when the tribesman died _without
issue_. But in the codes a _peculium_ of private property of which the
_da_ was the kernel is recognised and allowed to descend to a tribesman’s
children instead of falling into the common stock.

[Sidenote: A redivision takes place _per capita_ as each generation dies
off.]

When the great-grandfather died, the chieftainship, with the landed
rights and the herds, was divided between his sons, who as brothers thus
became chiefs of sub-gwelys. But the original gwely did not then break
up, because there would be a right of division _per capita_ when the
brothers were dead between first cousins, and when the first cousins were
dead between second cousins.

The division between brothers was probably originally made only between
those sons of the parent who were living at his death. Like the sons of
the surviving brothers, the sons of a deceased brother must be content
with their _da_ till all the brothers were dead, and in the division
between first cousins they would take their share _per capita_ along with
the rest.

But at the time of the codes, by what Continental examples lead us
to regard as an innovation, the orphaned nephews were allowed in the
division to succeed at once, side by side with their uncles, to the share
and position which their father would have taken had he survived.

[Sidenote: The rights and property of a tribesman dying without issue
fall into the common stock.]

Even after this innovation, if a brother had died _without issue_, his
brothers as brothers did not at once succeed as co-heirs. The share
fell into the common stock till a division, and then went to all the
co-inheritors _per capita_, so that cousins, and it might be even second
cousins, took their shares in it.

The introduction of succession by representation to a deceased father’s
property and privilege was, as we shall see in Continental cases, a step
taken in the direction of individual ownership. It complicated the matter
of the division or devolution of the chieftainship in the gwely, but it
is a point of interest in connection with the Continental evidence.

A clear understanding of the constitution and working of the gwely, as a
typical family group, is so important to this inquiry that it is worth
while to place before the reader the passages in codes upon which, taken
together with the surveys, the foregoing description of it rests.

[Sidenote: Clauses in the Venedotian Code.]

The following is the clause in the Venedotian Code describing what took
place in the gwely, under the heading ‘The Law of Brothers for Land:’

    Thus, brothers are to share land between them: four erws to every
    tyddyn [homestead]. Bleddyn, son of Cynvyn, altered it to twelve
    erws to the uchelwr, and eight to the aillt, and four to the
    godaeog; yet, nevertheless, it is most usual that four erws be in
    the tyddyn.…

    If there be no buildings on the land, the youngest son is to
    divide all the patrimony (trew y tat), and the eldest is to
    choose, and each in seniority choose unto the youngest.

    If there be buildings the youngest brother but one is to divide
    the tyddyns, for in that case he is the meter; and the youngest
    to have his choice of the tyddyns; and after that he is to divide
    all the patrimony; and by seniority they are to choose unto the
    youngest; and that division is to continue during the lives of
    the brothers.

    And after the brothers are dead, the first cousins are to
    equalise if they will it; and thus they are to do: the heir of
    the youngest brother is to equalise, and the heir of the eldest
    brother is to choose, and so by seniority unto the youngest; and
    that distribution is to continue between them during their lives.

    And if second cousins should dislike the distribution which took
    place between their parents, they also may co-equate in the same
    manner as the first cousins; and after that division no one is
    either to distribute or to co-equate. Tir gwelyauc is to be
    treated as we have above stated.[22]

[Sidenote: Clauses in the Dimetian Code.]

In the Dimetian Code the same rules of division are stated as follows:

    When brothers share their patrimony (tref-eu-tat) between them,
    the youngest is to have the principal tyddyn, and all the
    buildings of his father, and eight erws of land, his boiler, his
    fuel hatchet, and his coulter, because a father cannot give those
    three to any but the youngest son, and though they should be
    pledged they never become forfeited. Then let every brother take
    a homestead (eissydyn) with eight erws of land, and the youngest
    son is to share, and they are to choose in succession from the
    eldest to the youngest.

    Three times shall the same patrimony be shared between three
    grades of a kindred, first between brothers, the second time
    between cousins, the third time between second cousins, after
    that there is no propriate share of land.[23]

       *       *       *       *       *

    After there shall have been a sharing of land acquiesced in by
    co-inheritors, no one of them has a claim on the share of the
    other, he having issue, except for a sub-share _when the time for
    that shall arrive_. Yet whosoever shall not have any issue of his
    body, _his co-inheritors, within the three degrees of kin from
    the stock, are to be his heirs_.[24]

Only by adhering very closely to these texts can the gwely be understood.
They seem at first sight to refer to the tyddyns or homesteads, but, as
we have seen, the landed rights of grazing in the villatæ in which the
gwelys were located were included also.

[Sidenote: How the divisions worked out in practice.]

It would obviously be a fair critical question to ask, what happened when
the second cousins at last broke up the gwely of their grandfather and
divided the land, or let us say the homesteads and the tribal rights of
grazing on the land, for the last time equally _per capita_? There might
be twenty or thirty of such second cousins. Did the original gwely split
up into twenty or thirty new gwelys? Let us try to realise what happened
by carefully following the text, in the light of the Denbigh Survey.

Let us take a hypothetical case in which the gwely of X is described by
the surveyor as holding an undivided share of the rights of pasture,
&c., in a particular villata or in several villatæ; and assume that,
according to the record, the internal divisions of the gwely followed the
family division of the descendants of X, as in the following table. Then,
applying the rules of the clauses as to _tir gwelyauc_, let us see how it
would work out in the hypothetical case stated.

      X, Great-Grandfather _deceased_
                           |
            +--------------+---------------+
            |                              |
         Son A                          Son B
            |                              |
     +------+------+           +-----------+--------+
     |             |           |           |        |
  Grandson Aᵃ      Aᵇ          Bᵃ          Bᵇ       Bᶜ
     |             |           |           |        |
     |         +---+---+    +--+--+    +---+---+    |
  G. Grandson  |       |    |     |    |   |   |    |
     Aᵃᵃ       Aᵇᵃ     Aᵇᵇ  Bᵃᵃ   Bᵃᵇ  Bᵇᵃ Bᵇᵇ Bᵇᶜ  Bᶜᵃ

Now let us suppose that X (the great-grandfather, from whom the gwely is
called the gwely of X) is dead. While his sons A and B are alive they
share equally in the grazing and other rights. When A is dead and so long
as B is alive no change is made except that A’s two sons share equally
their father’s right to which, in the phrase of the codes, they have
‘ascended.’ B at length dies. There are five grandsons, first cousins,
who have a right to share in the rights of the gwely of X _per capita_.
There is now therefore a rearrangement after which A’s sons share and
hold jointly only 2-5ths, while B’s three sons hold jointly 3-5ths.
Equality _per capita_ among grandsons has now been effected. But the
gwely goes on. It cannot be broken up because in another generation the
great-grandsons may require a fresh division.

[Sidenote: The process is a continuous one.]

Next let us see what happens when all the grandsons are dead and the
final division _per capita_ takes place. There are nine great-grandsons.
Is the gwely of X now to be divided into nine new gwelys? Certainly not.
The grandsons of A are entitled to 3-9ths only, and this they divide
_per capita_, being first cousins; one family takes 1-3rd and the other
2-3rds. The portion which has fallen to them of family rights in the
gwely of X has become a separate gwely, called either the gwely of A or,
as we sometimes find in the Denbigh Survey, the ‘gwely of the grandsons
of A’--‘_gwely weiryon A_.’ The other portion has become either the gwely
of B or the gwely of the grandsons of B--‘_gwely weiryon B_.’

The grandsons of B, being first cousins, have of course redivided their
6/9ths equally _per capita_, and the internal rights of the gwely of the
grandsons of B are

  Bᵃ’s two children have 2/6ths.    }
  Bᵇ’s three children have 3/6ths.  }  of 6/9ths.
  Bᶜ’s one son has 1/6th.           }

They cannot break up the gwely of ‘the grandsons of B’ because they are
not second cousins. But when all of them are dead, their children will be
second cousins and may do so, and then three new gwelys will be formed in
the same way as above, and so on for ever. The process is continuous and
always within the same rules of ‘tir gwelyauc.’

This seems to be the state of things as regards succession within the
gwely resulting from the rules laid down in the Codes and found at work
by the surveyors of the Lordship of the Honour of Denbigh. But we must
remember that, apart from these rights of succession, each tribesman on
becoming a tribesman had been the recipient of his _da_, and so had had
cattle of his own all along in the common herd.

[Sidenote: The rights of females in the gwely.]

Finally, the position of females in the gwely should not pass without
recognition. They are not mentioned in the statements of landed rights
because, provision having been made for their maintenance independently
of their father, they were assumed, whilst claiming their ‘gwaddol’ or
portion, to take this with them, on marriage, out of the gwely. They
ought to be married into another gwely, within which their sons in due
course would receive inheritance and landed rights by paternity. Only
on failure of this could their sons claim landed rights by maternity in
their mother’s original gwely.[25]


III. THE LIABILITY OF THE WIDER KINDRED FOR _GALANAS_ IN CASE OF HOMICIDE.

Such being the _gwely_, we pass on to the wider kindred, embracing the
descendants of seven (and for some purposes nine) generations from a
common ancestor.

[Sidenote: The galanas in lieu of blood feud between kindreds for
homicide, but none within the kindred.]

We find from the Cymric Codes that the members of the wider kindred
had common responsibilities in case of a homicide causing a blood feud
between kindreds. A murder _within_ this wider kindred was regarded as
a family matter. The murderer was too near of blood to be slain. No
atonement could be made for so unnatural a crime. There was no blood
fine or ‘galanas’ within the kindred. The murderer must be exiled. But
a murder of a member of one kindred by the member of another, inasmuch
as, if unatoned for, it would under tribal custom have produced a blood
feud between the two kindreds, was the proper subject for the substituted
payment of the blood fine or ‘galanas.’ The galanas was thus a payment
from one kindred to another in lieu of the blood feud. But its amount
was divided in payment on one side and in distribution on the other, in
varying proportion according to nearness of relationship to the murderer
or the murdered person as the case might be. And in these payments and
receipts all the individual tribesmen within the kindred who had received
their _da_ must take their share if needful.

[Sidenote: Payment and receipt by maternal as well as by paternal
relations.]

The question who had to pay and who had to receive was moreover
complicated further by the fact that it involved maternal relations
as well as paternal relations. It has been very properly pointed out
that, however it might be as regards money payments, it is difficult to
conceive how the liability of maternal relations could be worked in the
case of actual blood feud and fighting. A man might have to fight for
his maternal relations against his paternal relations, or the reverse.
In such a case what must he do? How should he act? He might be in an
impossible position.

Light upon this point and others may be obtained, perhaps, when the
evidence of ‘Beowulf’ is analysed. This evidence will show that a man
may have good cause under tribal custom not to join in some feuds. And
further it will remind us that feuds often arose in contravention of
tribal usage, breaking the peace which in theory the link of marriage
ought to have secured.

In the meantime it would seem possible that the custom of a tribe might,
for anything we know, forbid marriage _within_ the near relationships of
the gwely, and _beyond_ the limits of the wider kindred. In such a case,
paternal and maternal relations might all be within the kindred, so that
properly speaking a quarrel between them could not become the subject of
a feud.

[Sidenote: Marriage a link between two gwelys. But as regards galanas the
wife remained in her own kindred.]

In such matters it is obvious that a good deal must depend upon the view
taken of marriage itself at the particular stage of evolution in which
the society might be. And it may as well be said at once that we should
be quite wrong were we to regard marriage from the Roman point of view,
_i.e._ as a transfer of the woman out of the _potestas_ of her parents
into the _potestas_ of the husband. The Cymric example, to begin with,
was quite different. The marriage of sisters to tribesmen from whom their
sons could inherit tribal rights was a duty cast upon the kinsmen of the
gwely.[26] It was thus an arrangement between two gwelys--a link between
them--but no transfer. If a wife were slain, her galanas or death fine
did not go to the husband and his family; it went to her kindred.[27]
If a wife should commit murder, it was the wife’s family and not the
husband’s on which rested the payment of galanas for her crime.[28] If
the husband were killed the wife took one third of the saraad or fine
for insult and wounding, but she took no part of the galanas of her
husband.[29]

These points are in a sense unexpected. They belong to a stage of social
life as far removed from Roman rules, or modern ones, as they are from
the stage in which a wife was either purchased outright or stolen. And
yet we shall find them in principle more or less clearly repeated in the
varying customs of some of the tribes whose laws we are about to examine.


IV. THE FISCAL UNIT FOR THE PURPOSE OF FOOD-RENTS TO THE CHIEFTAINS.

[Sidenote: The geographical unit for food rents.]

The structure of tribal society in Wales is one thing. The practical
working of its rules is another. Until we can to some extent realise its
methods and see how its results could be worked out in everyday life, it
must remain to some extent vague and mysterious. The nearer we get to its
core, the greater its value as an instrument in further research.

We cannot, therefore, afford to disregard any hints that the Codes and
surveys may give us, attention to which would help us to realise its
methods or ways of working.

[Sidenote: Districts called _villatæ_.]

The Denbigh Extent, as already said, enables us to realise that, on
the English conquest, the lordship of Denbigh was divided into grazing
districts which had become the units of tribal food-rents, and which were
adopted for purposes of future taxation. These districts were called
by the scribes _villatæ_, and were occupied by gwelys of tribesmen and
sometimes also by gwelys of non-tribesmen. Their homesteads or huts were
occupied in severalty. Their grazing rights were undivided common rights,
and within each gwely the rights of families and individuals were also
undivided common rights.

Further, the Denbigh Extent shows how easy it was to shift the whole
body of tribesmen of this or that gwely, with its herds, from one
district to another, according to convenience or the needs of population,
without disturbing the complex rights within the gwely. The families and
individuals carried their rights, _inter se_, with them wherever they
and their herds might go, and were liable to pay the dues required from
whatever villata for the time being might be occupied by them.

Even the homesteads of the tribesmen seem to have been temporary, in the
light of the description given by Giraldus Cambrensis. They could carry
their hearth-stones with them wherever they went, so that the result
seems to be that the groups of kindreds could always have been easily
shifted about, as they were in fact after the English conquest, from one
district or ‘villata’ to another. The geographical divisions thus became
the permanent fiscal units in tribal arrangements. Both in the surveys
and in the Codes we find the villata or district, and not the family
group, the fixed unit for tribal food-rents to the chieftain, and for
taxation after the English conquest.

[Sidenote: The ‘tref’ or ‘maenol’ paying the ‘tunc pound.’]

The surveys so far agree with the Codes. The _villata_ of the surveys was
the taxable unit, and in some cases still paid the tunc pound (or 20_s._)
in lieu of the chieftain’s food-rents. In other cases escheats and other
causes had varied the amount. In the Codes of South Wales the unit for
the tunc pound was the _tref_, and in the Venedotian Code of North Wales
the _maenol_ of four trefs.

Now, as in the surveys the family groups or gwelys were located so as
to occupy sometimes several villatæ, and sometimes undivided shares in
villatæ along with others, so, if we may take the villata of the surveys
as equivalent to the tref or maenol of the Codes, we must expect to find
that the kindreds of tribesmen at the period of the Codes were scattered
in the same way over the trefs and maenols. And, as the maenol was a
group of trefs, the _tref_ is the unit of tribal occupation as to which a
clear understanding is most necessary. In this, however, we may be, after
all, only partly successful.

The word _tref_, though generally used for a homestead or hamlet, seems
from its other meanings to involve the idea of a _group_.

[Sidenote: The tref and its ‘randirs.’]

There were cases in which a disputed matter of fact had to be established
upon the evidence of men of the _gorvotref_, _i.e._ by men of the
groups outside the tref in which the question in dispute arose.[30] And
this _gorvotref_ was not merely the next adjoining tref or trefs, but
it consisted of those _randirs_ or divisions of neighbouring trefs of
uchelwrs, or tribesmen, whose boundaries touched the tref in which the
disputed facts arose. Neighbouring randirs of taeog trefs, _i.e._ the
trefs of non-tribesmen, were excluded, presumably because the testimony
of taeogs in matters relating to tribesmen was not relied on. But this
compound of the word tref implies that its general sense was a group of
homesteads. That, in general, trefs had defined boundaries, is clear from
the fact that it was an offence to break them, and this applied also to
the randirs or divisions of the tref.[31]

[Sidenote: The trefgordd of one herd and one plough.]

Speaking, then, of the group generally known as a tref, we must regard
it, not only as a taxable area, but also as the natural group known
everywhere as a _trefgordd_, _i.e._ the natural group of the homesteads
of relatives or neighbours acting together as a single community as
regards their cattle and their ploughing.

The typical lawful _trefgordd_ is thus described:--

    This is the complement of a lawful _trefgordd_: nine houses and
    one plough and one oven (odyn) and one churn (_gordd_) and one
    cat and one cock and one bull and one herdsman.[32]

There is another passage which mentions the nine buildings in the tref.

    These persons do not forfeit life.…

    The necessitous for the theft of food after he has traversed
    three trevs, and nine houses in each trev, without obtaining a
    gift though asked for.[33]

So, in case of fire from negligence in a tref, the holder of the house
in which it arose was to pay for the damage to the next houses on each
side if they took fire.[34] And again no indemnity was to be paid to the
owners in a trefgordd for damages from the fire of a smithy if covered
with shingles or tiles or sods, nor from the fire of a bath, provided
always that the smithy and the bath were at least seven fathoms from the
other houses in the trefgordd.[35]

[Sidenote: Not always of one gwely only.]

The description above quoted of the normal trefgordd suggests that the
herd under the one herdsman did not belong to one person or homestead,
but to many; and so far it seems to be consistent with the surveys which
represent the villatæ as occupied by the cattle of several family groups
who had grazing rights therein.

And this, too, accords with what the Denbigh Extent tells us of the
individual tribesmen, viz. that only some of them had homesteads.
So-and-so ‘habet domum’ or ‘non habet domum.’[36] The young tribesman
with his _da_ thus may have joined in a common homestead with some one
else--probably with his parents or near relatives.

Distinguishing, then, the tref as a taxable area from the trefgordd, and
still confining attention to the trefgordd as a cluster of homesteads
united for the practical purpose of occupation, let us recur to the
things which bound the trefgordd into one group, viz. the one plough, the
one oven, the one churn, the one bull, and the one herdsman.

Here are the two elements combined of pastoral and agricultural
co-operation, and the trefgordd is the local and physical unit of this
co-operation.

[Sidenote: The unit of co-operative dairy farming. The common herdsman
and his dog.]

Taking first the pastoral element, the trefgordd was a working unit
of co-operative dairy-farming. The cattle of several households or
individuals were put together in a common herd with a common bull and
under the care of a common herdsman (bugeil) and his dog. It may be
regarded as a group of the homesteads of the persons in charge of such a
herd, and the tribesmen of a gwely may have cattle in the herds of more
than one trefgordd.

Three things were ‘ornamental’ to a trefgordd, ‘a book, a teacher versed
in song, and a smith (gov) in his smithy;’ but a trefgordd herdsman was
an ‘indispensable’ of the _hendrev_,[37] and, when engaged with his herd
in summer on the mountain, _his_ ‘three indispensables’ were ‘a bothy,
his herdsman’s dog, and a knife;’ and the three indispensables of his
bothy were a roof-tree, roof-supporting forks, and wattling, and he was
at liberty to cut them in any wild wood he pleased.[38]

So far, then, as the pastoral element was concerned, the trefgordd was
occupied by a little group of tribesmen engaged in dairy-farming having
charge of cattle in a common herd, with a common bull, and under the care
of a common herdsman and his dog.

[Sidenote: The herd of 24 kine.]

Custom, grown out of traditional experience of what a single herdsman and
his dog could manage, had determined, it seems, the size of the normal
herd. Thus in the Gwentian Code[39] we are told that ‘a legal herd of
cattle is 24 kine.’ And custom tenaciously adhered to tribal rules in
such matters.

Thus in the Denbigh Extent it is mentioned that the whole villata of
Arquedelok was _in manu domini_ by reason of escheats and exchanges, and
that a portion of it was let _ad firmam_ to nine firmarii, each of whom
held for a term of years 31 acres, with one bull and 24 cows, paying per
annum 73_s._ 4_d._, and rendering to the lord at the end of his term
the said bull and cows or their price, together with the land and a
house built thereon.[40] Here, even in a case in which Henry de Lacy was
introducing into Wales holdings and herds in severalty, and very possibly
introducing English tenants, he adhered to the Welsh tribal rule of the
one bull and 24 cows to the herd. So also in the survey of St. David’s,
under the head _Glaston_ in Breconshire, the number 24 of _grossa
animalia_ is spoken of as the usual number _ab antiqua consuetudine_, and
in the arrangement of common pasture one great animal is said to count as
equal to twelve sheep.

The normal herd of the trefgordd was then 24 cows, or their equivalent in
bullocks and sheep.

During the summer months the herdsman living out on the mountains was
responsible with his dog for the cattle of the trefgordd. And his dog was
worth as much as a cow or an ox, if it was one that ‘will go _before_
the herd in the morning and _behind_ them in the evening, and make three
turns _round_ them in the night.’[41]

Having no cattle of his own in the herd, the herdsman’s testimony as
to whose cattle were injured, and as to whose cattle had done the
injury, was held, when such cases arose, to be sufficient to make the
owner responsible, while as regards injuries done by the cattle of one
trefgordd to those of another there was joint responsibility.[42] There
is common sense in such rules to begin with, and then, having grown into
custom, they become perpetuated when custom is codified.

[Sidenote: The common churn.]

The trefgordd possessed further a common churn. This implies that the
milk of the cows was thrown altogether into this one churn as in Swiss
mountain communes now. One of the dues from a taeog trev, _i.e._ a group
of _non_-tribesmen, was a cheese made from a day’s milking of all the
cows in the herd. So that we note in passing that the taeog-tref, _i.e._
of non-tribesmen, also had its herd and was in fact a trefgordd.[43]

In winter the cattle came down into the lowlands and grazed on the
pastures near the tyddyns or homesteads of the tref, and as each of these
had its corn and cattle-yard,[44] we may conclude that each owner penned
in his own cattle at night during the winter months or joined with some
other tribesmen who had a homestead in doing so. The rules as to the
divisions of the tyddyns probably referred to these winter homesteads so
held in quasi-severalty.

We need not dwell upon the common _oven_. Every hamlet in Brittany
possesses its common oven to this day, often in the middle of the village
green. Nor need we more than mention the common plough, to the team of
which the tribesmen contributed oxen for the _cyvar_ or common ploughing
of the portion of the waste agreed upon for each year’s corn crop.

[Sidenote: The trefgordd the unit for food rents. The tribesmen could be
shifted about.]

The attempt to realise what this practical unit--the trefgordd--was, will
not be thrown away if it should help us to understand how easily it lent
itself to the arrangement of the chieftain’s food-rents or tribute in
after-times of taxation. Granted that some such system of trefgordds or
clusters of trefgordds pretty generally prevailed, having grown up as a
matter of convenience in a grazing community, it is obvious how easily it
might become the unit of tribute or taxation. Just as in the Domesday
Survey the number of ploughs affords such a unit, so in a tribal
community a district might easily be fiscally estimated at so many herds,
or so many churns, or so many ploughs. All these would mean so many
trefgordds. And whatever the relations of the trefgordd to the villata
of the surveys might be, and however much or often the actual residents,
with their herds, might be shifted from one district to another, the
district, as in the Denbigh Extent, would remain the permanent unit for
payments.

[Sidenote: The _firma unius noctis_. Afterwards commuted into money
payments.]

In the early stages of tribal life, when the chieftain of the tribe moved
from one district to another and received his food-rents in the actual
form of ‘the night’s entertainment,’ each customary place of encampment
in his annual progress would become the centre at which the food-rents
would be paid and services rendered for as many nights’ entertainment as
his accustomed stay in the place. In later stages, when the chieftain’s
dues were commuted into money, the ‘tunc pound’ in lieu of food-rents
easily became, as we find it in the surveys, a charge on the district
rather than on the shifting tribesmen and their herds.

And when the power of the chieftain had grown with time, and instead of
‘nights’ entertainments’ obtained in the primitive way by the actual
movement of himself and his retinue from place to place, the food-rents
or the tunc pounds in lieu of them were delivered at his palace, he would
become the recipient of a regular revenue. And out of this revenue it
would become easy for him to reward a follower or endow a church by the
transfer of so many food-rents or tunc pounds in lieu of them, or the
revenue from such and such a district, or of so many of its trefgordds,
without disturbing the internal working of the system or the daily life
of the tribesmen and their herds. When Beowulf returns to his chieftain
after his exploit and is rewarded by the gift of a palace and so many
‘thousands,’ we naturally ask of what, and how it could be done. We may
not be able to say off-hand what the unit was, but we get from the Welsh
example some rough idea of what tribal tribute and income were, and how
these could be readily gathered and transferred.


V. THE METHOD OF PAYMENT OF GALANAS BETWEEN KINDREDS.

Postponing for a while the consideration of the position of the various
classes of non-tribesmen, but still keeping in view the fact that in
considerable numbers they were practically sharers with the tribesmen in
the rights of grazing and occupation of land, we are now in the position
to realise to some extent what happened when a murder had taken place.

[Sidenote: No galanas for murder within the kindred.]

If it was of some one within the kindred, there was, as we have said, no
slaying of the murderer. Whether it were a parricide or a fratricide, or
the murder of a near kinsman, under Cymric custom there was no galanas,
nothing but execration and ignominious exile.

[Sidenote: The blood feud and therefore blood fine between kindreds.]

But if a tribesman of one kindred were killed by a tribesman of another
kindred, then it was a serious matter of blood feud between the kindreds,
or of the payment of the blood fine. The tribal conscience demanded
vengeance or composition.

[Sidenote: The slayer flees to a church with his cattle.]

It sometimes happened that the murderer had fled to a church for safety,
taking his cattle with him. For the clergy or monks at the place of
refuge had a herd of cattle of their own, and with them the murderer’s
cattle were allowed to wander and graze so long as they returned nightly
to the refuge.[45]

[Sidenote: Six cows for the saraad or insult.]

There he remained presumably till the kindred of the murdered tribesman,
through negotiation and arrangement of the chiefs of the kindreds, had
agreed to accept the payment of the galanas, if it were the case of
an uchelwr or full tribesman, of 126 cows. Six cows, as we shall see
hereafter, were _saraad_ for the insult, and 120 cows galanas for the
murder. The saraad was paid first--six cows or other cattle to the same
value belonging to the murderer were driven from the herd in payment.

The murderer’s life was then safe, and presumably he might return with
his cattle to his place.

Within a fortnight, the tribesmen of the murderer’s kindred met to
apportion the payment of the rest. They came from trefgordds far and
near, from the territories sometimes of various higher territorial
chieftains within whose districts they had grazing rights.

[Sidenote: 120 cows by fortnightly instalments for galanas.]

The collected tribesmen having apportioned the payment, fortnight after
fortnight instalments must be paid till the whole number in value of 120
cows was completed.[46]

But by whom was the payment to be made?[47]

[Sidenote: The slayer’s near family pay 40 cows.]

Forty cows must first be found by the _murderer_, his _father_, _mother_,
_brothers_, and _sisters_ with him. They doubtless helped one another,
but theoretically, in one or other of the common herds, there must have
been cattle belonging to the murderer, his father, mother, brothers, and
sisters, or how could they have paid their shares? There was nothing
unreal in this liability of each to pay a share, for had the murderer
been slain each one of them would have received, instead of having to
pay, a share in 40 cows.

The murderer himself had to pay a third of the 40 cows if he had them.
His father and mother between them paid the next third, and the brothers
and sisters the remaining third, the sisters paying half what the
brothers did.[48] The herds of many a trefgordd must be thinned before
this could be done.

[Sidenote: The other 80 fall on the kindred.]

The remainder of the galanas, viz. 80 cows, fell on the kindred, to the
seventh degree or fifth cousins. The paternal relations had to find two
thirds of it and the maternal one third, and these kindreds embraced the
descendants from the great-grandparents of the great-grandparents on both
sides.

In the first fortnight the kindred on the father’s side had to find half
what was due from them. In the second fortnight they had to find the
other half, and in the third fortnight the maternal kindred had to find
their share, till so at last the full tale of the 120 cows was paid. The
oath of peace from the kindreds of the murdered man could then be given,
and the murderer and his kinsmen, be at peace.[49]

[Sidenote: The slayer’s right of ‘spear penny.’]

But what happened if the murderer could not find the cattle for his third
of the 40 cows which he and his immediate family had to find? He had yet
a right, as a member of the greater kindred, to claim in aid a ‘spear
penny’ from all those male kinsmen descended from a common ancestor on
his father’s side two steps further back, _i.e._ still more distantly
related to him than those included in the kindred to the seventh degree
who had already paid their share. Even if the slayer were a woman, she
had the same right of spear penny from the men of her kindred to help her
to make her payment.[50]

[Sidenote: The solidarity of the kindred and individual liability within
it.]

So this attempt to realise what was involved in the payment of an
ordinary case of galanas brings us back to the recognition of the double
aspect of the kindred in the structure of tribal society--its solidarity
and joint responsibility, on the one hand, as against outsiders, the
whole kindred being responsible in the last resort; on the other hand the
individual responsibility of its members, graduated according to nearness
of relationship, for the crimes of their relative.

[Sidenote: Each had his _da_ or cattle for maintenance and so could
contribute to the payment.]

In Cymric tribal society this was made possible by the broad fact that
both males and females in the group of kindred, on both paternal and
maternal sides, liable to pay, had cattle of their own in the common
herd, each having received his or her _da_ for maintenance by right of
kin and descent from the common ancestor or chieftain of the kindred. The
two things surely hang together. And therefore, if we find in the laws of
other tribes somewhat similar rules regarding the payment of wergelds, it
probably will be worth while to inquire further whether the corresponding
structure of tribal society, or something more or less equivalent to it,
may not be present also.


VI. THE AMOUNT OF THE CYMRIC GALANAS.

[Sidenote: The galanas and the saraad distinct things.]

In all the Welsh Codes the galanas, as already mentioned, is described in
a peculiar form. It is a combination of two items, viz. the saraad, or
payment for insult, and the galanas proper.

Thus the galanas of the innate boneddig, or young tribesman, accepted by
the kindred as a tribesman of nine descents of Cymric blood, is described
as ‘three kine and three score kine,’ that of the _uchelwr_ or _breyr_ as
‘six kine and six score kine.’

The explanation of this is obtained from the following passage:--

    What is the galanas of the breyr without office? Six kine and six
    score kine. The six score kine is the galanas and the six kine is
    for saraad of the corpse.[51]

So also in the Gwentian Code:--

    When a married man shall be murdered his saraad is first paid and
    then his galanas, for the wife has the third of the saraad, and
    she has no part of the galanas.[52]

So also in the Venedotian Code:--

    No one is killed without being first subjected to saraad. If a
    man be married, let a third of the man’s saraad be given to his
    wife and let the two shares be placed with the galanas, and after
    that let the galanas be divided into three shares and let the
    third share go to the lord as exacting third.[53]

[Sidenote: The wife shared in the saraad of her husband, not in the
galanas.]

The reason why the wife has a share in the saraad and not in the galanas
has already been explained. She suffers from the personal affront or
insult to her slain husband and shares in the saraad. But she has no
blood relationship with her husband, and only the husband’s kindred are
therefore entitled to share in the galanas, as her husband’s kindred
alone would have been concerned in the feud.

The saraad and the galanas were therefore separate things and subject
to separate rules, though both payable on the murder of a tribesman.
The galanas proper is what must be regarded in any comparison with
Continental wergelds.

[Sidenote: That of the ‘uchelwr’ 120 cows; of the young tribesman 60
cows.]

The real galanas of the uchelwr or breyr, apart from the saraad, was 120
cows, and that of the young innate boneddig who had received his _da_ but
had no family was 60 cows. In one of the Codes his galanas when _married_
is said to be 80 cows.

Now in what currency was the galanas paid? Formerly, according to the
Codes, all payments were made in cattle, and the galanas proper was
reckoned in scores of cows.

But of what cow? How was the normal cow for practical purposes to be
defined? It is a question worth answering, because we may probably take
the Cymric method, of valuing the cow as a unit of currency in cattle,
as at any rate suggestive of the methods generally adopted by other
tribes.

[Sidenote: Description of the normal cow.]

According to the Venedotian Code the cow was of full normal value when in
full milk and until her fifth calf.

    And if there be any dispute concerning her milk, she is to be
    taken on the 9th day of May to a luxuriant place wherein no
    animal has been before her, and the owner is to milk her without
    leaving any for the calf, and put the milk in the measure vessel,
    and if it be full twice a day that is sufficient; and if it be
    not, the deficiency is to be compensated by oatmeal until the
    feast of St. Curic, thence until the feast of St. Michael by
    barley meal, and from thence until the calendar of winter by rye
    meal.

    Others say that the worth of the milk deficient in the measure is
    to be returned to the possessor of the cow; if half the milk be
    deficient, half the worth; if a third of the milk, a third of the
    worth; and that is the best mode.[54]

Then the _milk measure_ is described thus:--

    The measure for her milk is, three thumbs at the bottom, six in
    the middle of the vessel, and nine at the top, and nine in its
    height diagonally (_enyhyd en amrescoeu_), and the thumb whereby
    the vessel is to be measured (in case of dispute) is the breadth
    of the judge’s thumb.

In the Dimetian Code substantially the same rules are given, except that
the measure of the cow’s milking is smaller.

    The measure of a vessel for a cow’s milk is nine thumbs at its
    edge, and three at the bottom, and seven diagonally from the
    off-side groove to the near-side edge in height.[55]

The only difference is between the seven and the nine thumbs of diagonal
measurement. Possibly there may be some error in the figures, and the
measure may have been the same in both Codes.

Returning to the galanas; although it was reckoned in the Codes in scores
of cows, a fixed equation had already been made between cows and silver.

[Sidenote: The cow reckoned as three ‘scores’ or ounces of silver.]

The normal cow was equated in the Codes with ‘three scores of silver.’
And in the Latin version of the Dimetian Code the ‘score of silver’ is
translated by ‘uncia argenti.’ The score of silver at the date of the
Code was therefore an ounce of silver. So that the reckoning is the
Frankish or Anglo-Saxon one of twenty pence to the ounce.

The score of pence of 32 wheat-grains would make the ounce of 640
wheat-grains: that is, the ounce of the pound of 240_d._, or 7680
wheat-grains--the pound in use in England after the time of Kings Offa
and Alfred, and at the date of the Codes.

[Sidenote: The galanas of the ‘uchelwr’ 30 lbs. of silver. At a ratio of
1:12 equal to the gold mina of 200 solidi.]

The galanas of the uchelwr or breyr being 120 cows, and the cow being
reckoned at three scores or ounces of silver, the galanas would equal 360
scores or ounces, or thirty pounds of silver.

The ratio of gold to silver after the temporary disturbance under
Charlemagne had, as we have seen, settled down again to the Imperial
ratio of 1:12.

Now thirty pounds of 7680 wheat-grains equal 230,400 wheat-grains, and
this number of silver wheat-grains divided by twelve equalled exactly
19,200 wheat-grains of gold. So that this Celtic galanas of the Cymric
uchelwr or breyr of 120 cows, like so many Continental wergelds, was
apparently exactly equal to 200 _gold solidi_ of ninety-six wheat-grains,
_i.e._ the heavy gold mina of Imperial standard.


VII. THE METHODS OF TREATMENT OF STRANGERS OR NON-TRIBESMEN.

[Sidenote: Strangers in blood how treated.]

Another point upon which special inquiry is made in this volume regards
tribal methods of treating strangers in blood and slaves.

There is no subject requiring more careful investigation than the
combination of circumstances out of which arose what is roughly called
serfdom, _i.e._ the attachment of tenants to the land rendering services
to a lord. I shall not be suspected of suggesting that tribal customs and
methods were the _sole_ factors which produced serfdom and of ignoring
the influences which came from Roman methods of managing landed estates,
and from Roman law modified by ecclesiastical usage.

Indeed, I have insisted from the first that while, in the ‘Germania’ of
Tacitus, the germs may be found of an ‘embryo manor,’ both Roman and
German elements probably combined in producing the later manorial system
and serfdom which grew up in what were once the Roman provinces of Gaul
and the two Germanies, and even also in Britain.[56] But I think that
in Cymric tribal custom we may find a fresh clue worth following in the
attempt to gather from Continental evidence the methods likely to be used
by conquering German or Anglo-Saxon tribes in the treatment of strangers
in blood.[57]

[Sidenote: After four generations on the land they become _adscripti
glebæ_ and obtain recognition of kindred.]

In Welsh tribal custom _alltuds_ or strangers and their descendants (not
necessarily otherwise unfree persons) having some special circumstances
in their favour, being allowed to settle within the district of a greater
or lesser chieftain upon land which, in a sense, may have been his
demesne land, were free to remove and settle under another chieftain,
unless and until they had remained on the same land or under the same
lordship for four generations. But thereafter the great-grandchildren of
the original settlers became _adscripti glebæ_. And this fixture to the
land, or rather to the lordship, was apparently not looked upon as in any
way a degradation in rank, but on the contrary a step in advance towards
the recognition of tribal rights. The great-grandson of the stranger did
not indeed become a Cymric tribesman, but he gained the recognition of
his status as the founder of a kindred of his own, the members of which
in after-generations would, as kinsmen, be able to swear for and defend
one another.

This being so in the case of free strangers coming into the country, the
next question is what was the position of the semi-servile class, the
_aillts_ and _taeogs_ of the Codes, who and whose ancestors for many
generations had been born upon the land in a semi-servile condition?

[Sidenote: Their rights increase with growth of kindred.]

The fixture to the land of the aillt or taeog was not the special mark so
much of a semi-servile condition as of his _want of recognised kindred_,
and under the local custom of South Wales it seems that he too, like the
alltud, could sometimes arrive at the recognition of kindred, without
indeed becoming a Cymric tribesman, at the end of four generations
of residence under the chieftain of the land; and even to further
recognition of it, involving a still better position as to rights, at
the ninth generation. The ninth man in South Wales seems according to
local custom in some districts to have, at last, climbed the highest rung
of the ladder, and to have attained the right to claim the status of a
Cymric tribesman.

This curious rise under Cymric custom, by steps of four generations,
up the ladder towards the recognition of tribal rights, seems to have
a suggestive correspondence with the reverse process under manorial
usage of proving the serfdom of a _nativus_ by showing that the
great-grandfather was a _nativus_ on the lord’s land, the manorial rule
being that settlement on servile land for four generations made the
posterity of an original settler into _nativi_.[58]

[Sidenote: Want of kindred the key to their position.]

Once more let us try to realise what this meant, and what was the
position of these Cymric non-tribesmen in regard to their settlement on
land.

If under the guidance of the Codes we turn to the extents and surveys,
we find them living, in some cases, not mixed up with the tribesmen, but
in separate groups, or trefs, or trefgordds. There may be here and there
exceptional alltuds or strangers of a higher class growing up, by the
gradual process of intermarriage for four generations with tribeswomen,
into the status of tribesmen. But the mass of the stranger class were
aillts and taeogs living in separate _taeog trefs_, though, according to
the surveys, sharing, often in common, certain rights of grazing over
certain districts with gwelys of tribesmen. Now these groups of taeogs
and aillts were, according to the Codes, as we have seen, of two classes,
and we recognise the same two classes when we find in the surveys not
only groups of taeogs in taeog-trefs but also gwelys of non-tribesmen.

The normal group of the taeog-tref differed from the free tref in the
fact that in it no family rights were recognised. All the members of it
shared in its rights and payments equally _per capita_, and not _per
stirpes_. They were all liable as a body, few or many, for the whole
amount of the dues to the chieftains. During their fathers’ lifetime sons
shared _pari passu_ and equally with their parents, and other members of
the group, in the pasture and common ploughing, except youngest sons, who
remained with their fathers.

In the gwelys, on the other hand, as in the gwelys of tribesmen, there
was recognition of family or blood relationships, and a patriarchal
element.

There were thus under Cymric tribal custom various subordinate grades or
classes. Beginning at the bottom of the ladder were:--

(1) The slaves who could be bought and sold, and who were reckoned as
worth one pound of silver.

(2) The taeogs and aillts or permanent _nativi_, born non-tribesmen,
without recognised family rights.

(3) Non-tribesmen growing or having grown in four generations into gwelys
of non-tribesmen with recognised family rights.

(4) Strangers of exceptional position who, having married into the tribe,
had become tribesmen in the fourth generation by repeated intermarriage.

And once more the fact should never be lost sight of, that the gradual
growth into tribal or quasi-tribal rights was not a growth into
exactly what in a modern sense would be called individual freedom.
It was accompanied by the growth of ties which bound the family to
the chieftain, till at the moment that at the fourth generation the
recognition of rights of kindred was attained, the family found itself,
as we have seen, so closely tied to the chieftain and the land that the
newly recognised gwely had become _adscriptus glebæ_.

Finally, the tribal logic of the case was probably something like this:--

[Sidenote: The stranger a kinless man who has no protection but from his
lord till a kindred has grown up around him.]

The free tribesman is the man who belongs to a kindred who can protect
him by oath and by sword. Until a stranger has kinsmen who can do this
he is an odd or kinless man, protected only by his lord. If he be killed
his galanas goes to his lord; he has no recognised kin to receive it.
If, on the other hand, he is charged with slaying another, he has no kin
to swear to his innocence, the oath of a non-tribesman not being held
good as against a tribesman. If guilty, he has no kin bound to fight
in the feud for him, or to help him to pay a galanas for his crime. So
that even when at the fourth generation the descendant of the alltud
becomes the founder of a gwely he has gained only half the status of a
tribesman. It is not till the fourth generation of descendants in the
gwely, _i.e._ the seventh generation from the original settler, that a
complete kindred has grown up. It is not till then that the descendant
of the original alltud is surrounded by a full group of relatives, born
in his great-grandfather’s gwely, whose oaths can be taken and who can
protect him by oath and sword or in payment of galanas. All this time the
alltud family have been more or less dependent on the protection of the
chieftain, and rights and obligations are apt to be correlative.

The object of this essay is to inquire how far, in the case of other
tribes, evidence may be found of the working of somewhat similar tribal
instincts, resulting in customary rules more or less like those of the
Cymry, so that at last, turning attention to the Anglo-Saxon laws, we
may be able all the more fully to recognise and appreciate in them the
traits of tribal custom, which among other factors went to the making of
Anglo-Saxon England.

In the meantime, for future reference, the following list of the galanas
of various classes will be found convenient:--

  The chief of kindred               180 cows  In Gwent and Dimetia 540,
  The uchelwr                        120  ”    and his family 180
  Man with family without office      80  ”
  The innate boneddig unmarried       60  ”
  The alltud of the brenhin or chief  60  ”
  The alltud of uchelwrs              30  ”
  Bondman    1lb. of silver or         4  ”
  Bondman from beyond sea              6  ”




[Illustration]




CHAPTER III.

_THE EVIDENCE OF BEOWULF ON TRIBAL CUSTOM REGULATING FEUDS &c._


[Sidenote: What were the laws of the blood feud?]

The object of the short study, in this chapter, of _Beowulf_, is to learn
what incidental information it may give of tribal usage regarding the
_blood feud_, especially on points which, in the case of the substituted
wergeld, present doubt and difficulty.[59]

Allusion has already been made to some of these points. Did the rule
excluding galanas or blood-fine within the kindred extend beyond the
gwely to the greater kindred? What happened to a tribesman in a feud
between his paternal and maternal kindreds? Did he abstain from taking
sides, or did a marriage so far unite two families or kindreds as to make
them one for the purpose of blood-fine or feud, so as to prevent the feud
or blood-fine from arising?

These are questions upon which we want light from the point of view of
Welsh tribal custom, and upon which we approach Beowulf for light, with
eyes open also to other matters of tribal usage as they may turn up.

[Sidenote: An 8th century story of blood feuds.]

Beowulf for the present purpose may be taken as an Anglian or
Northumbrian recension of a story founded upon Scandinavian
tradition, and designed for use or recital at some 8th century royal
court--possibly, if Professor Earle’s suggestion be correct, that of King
Offa.

The western horizon of the story extends to the Frisian shores, but the
scene seems chiefly to lie in the Baltic.

The plot involves tribal relations between a chieftain of the Danes
possibly of Zealand, and two Swedish chieftains. The two latter concern
us most, and they seem to be the chiefs of two kindreds--Geats and
Swedes--Beowulf himself being the link between them, his mother having
married from one into the other kindred. This marriage at any rate was
one _between_ two kindreds.

There is no apparent effort on the part of the poet to enlighten the
reader or those who heard him either upon the pedigrees of the persons
mentioned in his story or upon the rules of Scandinavian tribal custom.
But it happens that, by incidental hints dropped in the telling of the
tale, the pedigree of each of the kindreds involved can be fairly made
out, and has already been made out by translators and critics.

[Sidenote: involving blood feuds between Beowulf’s paternal and maternal
kindred.]

And as the story involves a homicide within Beowulf’s maternal kindred,
and fighting and bloodshed between the kindreds in spite of the marriage
link, and as it deals also with outside feuds, it happens to present
remarkable opportunities for studying the action of tribal custom in
various cases.

The evidence it gives is made all the more valuable by its being an
Anglian version of Scandinavian traditions, inasmuch as the poet, or his
Anglian interpreter, assumes throughout that the laws of the game, under
Scandinavian tribal custom, were too well known to need explanation to
his Anglian audience. So that by inference it would seem that the customs
of Baltic chieftains were familiar at the court of Offa, and not very far
removed from those of Anglian tradition.

[Sidenote: The Scyldings.]

The poet introduces us first to a tribe of _Gar-Danes_ and the clan
or kindred of Scyldings. Scyld the son of Scef is the ancestor of the
Scyldings. He is an Adeling who has torn their meadthrones from many
tribes (mægdum) and in true tribal fashion compelled them to pay tribute.
Surrounded in his old age by numerous descendants and other _gesiths_ who
have resorted to him, the chieftain has become a great hero in his tribe
(mægdh).

[Sidenote: The burial of Scyld by his ‘gesiths.’]

A graphic description of the burial of Scyld in his ships by his gesiths
is a fitting introduction to the poem. Let us mark in passing that the
word mægd evidently may mean a much wider kindred than the near family of
a great-grandfather’s descendants (the Welsh gwely). One mægd conquers
another and makes it pay tribute.

Again the word gesith evidently includes, with members of the near kin,
such others, not necessarily blood relations, as may have joined the
warrior band of the hero. They may or may not have been adopted into
his kindred in becoming his men, but this extension of comradeship or
kinship, as the case may be, to these gesiths adds to the greatness and
power of his mægd.

     SCYLD    | BEOWULF     | HEALFDENE  | HEOROGAR   { HEOROWEARD
  The great-  | (not of     | The father | (61 and    { (2162)
  grandfather | the story)  |            | 467)       {
              | The great-  |            |
              | grandfather |            +-HROTHGAR   { HRETHRIC
                                         | The        { (1190,
                                         | Scylding   { 1837)
                                         | m.         {
                                         | Wealtheow  { HROTHMUND
                                         | (61 and    {
                                         | 613)       { FREAWARE
                                         |            { (2023)
                                         +-HALGA
                                         | (youngest  { HRODULF
                                         | son) (61)  { (1018, 1165,
                                         |            { 1182)
                                         |
                                         +-ELAN       { ONELA
                                         | daughter   {
                                         | presumably {
                                         | married to {
                                         | Ongentheow { OTHERE
                                         | the        { ‘sister’s { EANMUND
                                         | Scylfing   { sons’ to  { 2929
                                         | (62-63)    { Hrothgar  {
                                         |            { 2929      { EADGIL
                                         |            {           { 239

[Sidenote: Hrothgar the great-grandson of Scyld.]

The opening episode of the burial of Scyld is followed by a few lines
which reveal something of the pedigree of his descendant Hrothgar the
Scylding. The pedigree of Hrothgar, in true tribal fashion, makes Scyld
his great-grandfather. He is ‘Hrothgar the Scylding,’ may we not say,
_because_ Scyld was his great-grandfather, just as Hengist and Horsa were
_Oiscings_ according to Bede, who in stating their pedigree makes _Oisc_
their great-grandfather, and just as in the Welsh surveys the gwelys
still bear the great-grandfather’s name though he be long dead, because
the gwely hangs together till the fourth generation.

So far as it goes here is at least an indication that the nearer kindred
(or gwely) might be much the same thing both in Celtic and Teutonic
tribes.

But Hrothgar is not described only as chieftain of his nearer kindred.
Success in arms had made him head of many _winemâgas_ (blood friends) and
he was surrounded by a mighty _mago-dright_ (band of kin). He had built
himself a famous _folk-stede_, or hall, called ‘Heort,’ and all had gone
well with him till the monster Grendel came upon the scene.

The deliverer from the monster was Beowulf, the hero of the story. He
comes from another kindred, that of the Scylfings, whose pedigree, not
fully given, seems to have been something like the following.

Scylf was the common ancestor of the Swedes or Scylfings. The tribe
was divided into two families in the elder of which descended the
chieftainship of the Scylfings (2382).

                        {     ONGENTHEOW     {
                        {   who presumably   {
  (1) Links not stated  {    married Elan,   { ONELA    {
                        { sister of Hrothgar {          { EANMUND
                        {  the Scylding (62) { OHTHERE  {
                                             {          { EADGILS

Second family of WÆGMUNDINGS.

               {  . . . .  { ECGTHEOW-----------BEOWULF
               {           { who fled to
  (2) WÆGMUND  {           { Hrothgar
               {           {
               {           { WIHSTAN------------WIGLAF

[Sidenote: Beowulf a great-grandson of Wægmund and so a Wægmunding.]

At any rate the Scylfings seem to be divided into two families whose
common ancestor was Scylf. But both Beowulf and Wiglaf are spoken of as
_Wægmundings_ (2608 and 2815). The headship of the Scylfings had passed
into the older of the two families (2384), and this probably is the
reason why Beowulf is never called Beowulf the Scylfing.

The reason why Beowulf appeared as the natural helper of Hrothgar from
the monster Grendel was that his father Ecgtheow owed a debt of gratitude
to Hrothgar. ‘Fighting out a mighty feud,’ Ecgtheow had killed Heatholaf
the Wylfing (460), thereby raising another feud. Wherefore his own
people (463) fearing invasion, had caused him to flee over sea, thereby
seemingly wiping their hands of him. He seems to have fled to Hrothgar
just as the latter had become chieftain of the Scyldings on his brother
Heorogar’s death. Hrothgar compounded the feud with money (470), sending
to the Wylfings over sea ‘ancient treasures.’ Whereupon Ecgtheow swore
oath to Hrothgar and presumably became his ‘man.’ And Beowulf now, ‘at
honour’s call,’ had come to fight the monster, thereby confirming the
friendship between Geats and Gar-Danes, requiting what Hrothgar had done
for his father (459).

[Sidenote: Beowulf a thane of his maternal uncle Hygelac.]

The details of the fight need not detain us. But the fact is important
that Beowulf comes to the rescue not as a Scylfing or as representing his
paternal kindred, but as the thane of his maternal uncle Hygelac, the
chieftain of his mother’s kindred.

He approaches Hrothgar with a band of fifteen chosen warriors. When
asked from whence they came they said they were Geats, Hygelac’s
_hearthgeneats_ (260). And the meaning of the word is illustrated further
when the warriors accustomed to sleep in Hrothgar’s hall are spoken of
as Hrothgar’s _hearthgeneats_ (1581, and see 260 and 2419). When brought
into the hall Beowulf himself calls his band Hygelac’s _beod-geneats_
(344) (table geneats), and to Hrothgar he calls himself ‘mæg and
mago-thegn,’ literally ‘kin and son thane’ of Hygelac (408).

The daring deed accomplished, Beowulf’s success is rewarded by many
golden and other gifts from Hrothgar, and it is significant that on his
return he lays all these at the feet of his maternal uncle Hygelac, his
_heofodmagus_--chief of kin--whose man and kin he owns himself to be. His
position in Hygelac’s kindred thus demands careful study.

This seems to be the pedigree.

                      { (1) HEREBEALD
                      {     killed by Hæthcyn
                      {
                      { (2) HÆTHCYN
  HRETHEL             {
  who had three sons  { (3) HYGELAC  { (1) A DAUGHTER
  and one daughter    {              {     who married Eofor
  thus:               {              {
                      {     m. Hygd. { (2) HEARDRED
                      {              {     Hygelac’s only son.
                      { (4) A SISTER
                      {     Beowulf’s      BEOWULF
                      {     mother         Hygelac’s sister’s son.

[Sidenote: Homicide within the family unavenged.]

Beowulf is made to say that, when seven winters old, Hrethel had
received him from his father Ecgtheow and had kept him as his own child
(2420). ‘Remembering kinship’ (sippe gemunde), the old chieftain held
him in no less regard than his own three sons, Herebeald, Hæthcyn, and
Hygelac. But Hrethel’s old age was full of trouble. The worst tragedy
that came upon him was the death of his eldest son Herebeald, killed by
his second son apparently by accident.

    Hæthcyn by arrow from hornbow brought him (Herebeald) down, his
    near kinsman. He missed the target and shot his brother. (2440)

Here, then, was an apparently accidental homicide within the family. How
was it regarded?

    One brother killed the other with bloody dart. That was a wrong
    past compensation.… Any way and every way it was inevitable that
    the Etheling must quit life unavenged. (2445).

The poet likens the father’s grief to that of ‘an old ceorle’ who should
see his young son ride on the gallows-tree and can do nothing but wait
while his son thus hangs, food for the ravens, as he cannot bring him
help (2450).

    So did the crowned chief of the Stormfolk, in memory of
    Herebeald, carry about a tumult of heart-sorrow. He could not
    possibly requite the feud upon the man-slayer, neverthemore could
    he pursue the warrior with hostile deeds though not beloved by
    him. He then, with the sorrow wherewith that wound had stricken
    him, let go life’s joys and chose the light of God. (2464.)

Thus incidentally is revealed by the poet the depth of the tribal feeling
that homicide can only be atoned for by avengement and feud, making it a
hard struggle against nature for a father to withhold revenge upon a son
for even accidental fratricide. As with the Cymry, it seems that there
could be no feud or composition within the family. Nor in the case of
accidental homicide was there apparently in the poet’s mind the necessity
of flight or outlawry, however great the craving for avengement. It is
also significant that Hæthcyn, the slayer, is made to join with his
brother Hygelac in the next warfare after Hrethel’s death (2474). The
accidental slayer remains a tribesman.

[Sidenote: Quarrel between Beowulf’s paternal and maternal kindred. He
takes no part in it.]

This next warfare was a quarrel--‘provocation and reprisal’--between
Swedes and Geats, _i.e._ between the paternal and maternal kindreds of
Beowulf. He himself, it is worth noting, did not engage in it. Onela and
Ohthere, the sons of Ongentheow (Beowulf’s paternal relation and chief of
the Scylfings or Swedes), apparently began the quarrel. They recklessly
broke the peace between the two families--Swedes and Geats. Hrethel was
no longer living. Beowulf’s maternal uncles, Hæthcyn and Hygelac, fought
on one side, and Ongentheow and his two sons on the other (2485). Hæthcyn
fell on one side and Ongentheow on the other: the latter by the hand of
Eofor--a comrade rather than kinsman of Hygelac, for he was rewarded by
the bestowal of Hygelac’s daughter. The quarrel seems to have been open
fighting, possibly from the revival of the old enmities and in breach of
tribal custom. Be this as it may, Beowulf himself took no part in the
quarrel between his maternal and paternal kindreds.

This disastrous and unnatural quarrel left Hygelac the only surviving son
of Hrethel, and so the chieftain of Beowulf’s maternal kindred.

All this irregular fighting, incidentally mentioned by the poet, was past
before Beowulf’s great enterprise against the monster Grendel. And,
as we have seen, it was as the ‘man and kin’ of Hygelac that Beowulf
appeared at Hrothgar’s court. And it was at the feet of Hygelac as his
chief of kin, and at the feet of Hygd his queen, that Beowulf laid down
his treasures on his return in safety. This exploit ended, Hrothgar
thenceforth disappears from the poem, and the poet confines himself to
Beowulf’s nearer belongings.

[Sidenote: But in feud with Frisians Beowulf fights for Hygelac, who is
killed.]

The next event in order of date is a quarrel between Hygelac and the
Frisians. This time Beowulf fights for his chieftain. But Hygelac is
killed (2357), and again the result reveals interesting traits of tribal
custom.

Beowulf returns from Friesland to Hygd the widowed queen of Hygelac. She
‘offers him rings and throne, not daring to trust that her young son
Heardred would be able to maintain the chieftainship against all stranger
folk.’ Beowulf, however, declines to become _hlaford_ over Heardred, but
supports him in his chieftainship till he should be older (2370).

Young Heardred, however, is not chieftain long (2380). The old lawless
quarrel between Beowulf’s maternal and paternal relations rises up again.

The facts, when unravelled, seem to be these:--Within Beowulf’s paternal
kindred trouble had arisen. For some cause not told, the grandsons of
Ongentheow (sons of Ohthere) had been outlawed. They are described as
wräc-mäegas (2380) and as having cast off allegiance to the chieftain of
the Scylfings. These outlawed kinsmen of Beowulf’s paternal family came
to young Heardred’s court, and whilst his guests (‘on feorme’) the young
chieftain fell by the sword of one of them (2388).

[Sidenote: Homicide within the kindred again is unavenged, though Beowulf
is guardian of the slain.]

It was Eanmund by whom this outrage was committed, and once more the
crime remained apparently unavenged. The slayer was allowed to withdraw
in safety, leaving Beowulf to succeed to the chieftainship of his
maternal kindred (2390). Again we ask why? Here was a crime committed
by an outlawed paternal kinsman of Beowulf against the chieftain of his
maternal kindred, of whom he was himself the guardian, and yet Beowulf
did not avenge it! Was it because of the kinship, or because of the
outlawry? Whilst nursing the remembrance of his chieftain’s death,
Beowulf is made to act with kindness to the other outlawed brother in
his desolation, waiting for such avengement as might come at last in the
course of things--as it did, according to the poet, when ‘with a band of
warriors over sea Eadgils died in cold and painful marches’ (2396).

[Sidenote: An outlawed tribesman not protected by his kindred.]

Avengement is made to follow too in the same way upon Eanmund the
murderer. It came from Beowulf’s paternal uncle, Weohstan. But here again
the poet is careful to record that it came not in a blood feud, but ‘in
fair fight’ with weapon’s edge (2612). And, as if to emphasise the fact
that the outlawed kinsman had forfeited all tribal rights, the poet adds
that ‘Weohstan from his kindred carried off the armour and sword of
Eanmund, Onela (Eanmund’s uncle) yielding them up to him _without a word
about a feud_, although he (Weohstan) had slain his brother’s son’ (2620).

Evidently the poet means to make it clear that Onela’s passive attitude
was due to the fact that his nephew was a lawless exile, and so no
longer entitled to protection from his kin (2612 and 2380).

    The old sword known among men as the relic of Eanmund (son of
    Ohthere), whom, when a lawless exile, Weohstan had slain in
    fair fight with weapon’s edge; and from his kindred (magum) had
    carried off the brown mottled helmet, ringed byrnie, and old
    mysterious sword; which Onela yielded up to him, his nephew’s
    war-harness, accoutrement complete. Not a word spake he (Onela)
    about the feud, although he (Weohstan) had killed his brother’s
    son. He (Weohstan) retained the spoils for many a year, bill
    and byrnie, until when his own boy (Wiglaf) was able to claim
    Eorlscip rank, like his father before him, then gave he to him,
    before the Geats, armour untold of every sort, after which he
    gave up life, ripe for the parting journey.

Thus the restrained desire of avengement incidentally is made to find
satisfaction at last as regards both the outlawed sons of Ohthere.

After these events the elder branch of the Scyldings passes out of the
poet’s interest. The only remaining heroes of the tale are the two
Wægmundings--Beowulf and Wiglaf.

A long interval had elapsed between Beowulf’s accession to the
chieftainship of his maternal kindred and the final feat of daring which
cost him his life. And it was Wiglaf, his nearest paternal kinsman, who
in the last tragedy came to his aid bearing the sword of the outlawed
Eanmund. Beowulf’s dying words to Wiglaf were: ‘Thou art the last left of
our kindred (cynnes) the Wægmundings. Fate has swept into eternity all
my kinsmen (mâgas)--eorls among men! I must after them!’ As he comes to
the rescue, Wiglaf remembers the honour done to him by Beowulf, who had
already passed on to him the hereditary right of the chieftainship of the
Wægmundings (2608).

[Sidenote: Beowulf as ‘sister’s son’ becomes chief of his maternal
kindred.]

Why had he done this? If we might tentatively use the clue given by
ancient Greek tribal custom to elucidate a Scandinavian case, we should
say that on failure of male succession the ‘sister’s son’ of Hygelac
had been called back into his mother’s kindred to become its chieftain,
leaving Wiglaf, his next of kin on his father’s side, to sustain the
chieftainship of his paternal kindred. The right of the maternal uncle,
known to have existed under early Greek law, to claim his ‘sister’s son’
if need arose, to perpetuate the mother’s paternal kindred, suggests a
similar explanation in Beowulf’s case. Such a right, found as well in
the Laws of Manu, may possibly have been inherent in Scandinavian tribal
custom also. Such a suggestion would be at least consistent with the fact
of Beowulf’s having been brought up from seven years old in the household
of his maternal grandfather, and treated by him as a son. It would be in
harmony, too, with what Tacitus describes to have been the relation of
the ‘sister’s son’ to the _avunculus_ amongst the German tribes, and the
peculiar value of the ‘sister’s son’ as a hostage.[60]

Some indirect confirmation of the probable truth of such a suggestion may
perhaps be also drawn from the fact that in Beowulf, when a man’s father
is no longer living, the poet sometimes seems to describe him as his
maternal uncle’s nephew instead of as his father’s son.

Heardred, the young son of Hygelac and Hygd his queen, after his father’s
death is spoken of no longer as Hygelac’s son, but as the _nephew
of Hereric_, ‘nefan Hererices’ (2207). Now his paternal uncles were
Herebeald and Hæthcyn, and it becomes an almost necessary inference that
Hereric was a maternal uncle. Thus:

                    HÆRETH (1929)
                    father of Hygd
            +------------------------+
            |                        |
        (HERERIC?)                 HYGD, m. Hygelac
  uncle of Heardred (2207)           |
                                  HEARDRED
                               nephew of Hereric[61]
                                    (2207)

So also in the case of Hygelac himself. He was the son of Hrethel. The
poet calls him son of Hrethel (1486), and again _Hygelac Hrethling_
(1924). But after Hrethel’s death he calls him ‘Hygelac of the Geats,
_nephew of Swerting_’ (‘_Hygelac Geáta nefa Swertinges_’) (1204). Here
again it seems likely that Swerting was the maternal uncle, though the
poet, as in the other case, does not think it needful to explain that it
was so. Otherwise, why the change of epithet?

We are here recording tribal customs as revealed in Beowulf, and not
seeking for their origin in earlier stages of tribal life. We pass on,
therefore, to consider what light the story throws on the customs of the
Northern tribes as to marriage.

[Sidenote: Tribal custom as to marriage.]

It is with the chieftains’ grade of rank that we have mostly to do in
Beowulf, and nothing is more strongly emphasised by the poet than the
important place of marriage between two tribes or kindreds as a link,
recognised, however, to be a very brittle one, binding them together so
as to end or prevent the recurrence of a feud.

When Beowulf, after his first exploit in aid of Hrothgar against Grendel,
has returned to his maternal uncle and chief of kindred Hygelac, and is
recounting his adventures, the poet at the first mention of Hrothgar’s
queen makes him call her the ‘peace bond to the people.’ And in the same
breath, in telling how in Hrothgar’s hall the daughter Freaware bore the
ale-flagon, he stops to tell how that ‘she, the young, the gold dight,
was promised to the gay son of Froda; it having pleased the Friend of the
Scylfings that he, through that woman, should compose deadly enmities and
feuds.’ And the poet makes Beowulf moralise to the effect:--‘Often and
not seldom anywhere after deadly strife, it is but a little while that
the baneful spear reposes, good though the bride may be!’

[Sidenote: Marriage a link between kindreds.]

It would seem that Hrothgar had been formerly at feud with the
Heathobeards, that Froda had been killed in the feud, and that the
marriage of Freaware to Froda’s son, Ingeld, was to close the feud. But
Beowulf repeats aside to Hygelac that he does not think much of the
chances of a long continuance of peace between Scyldings and Heathobeards
(2030).

    Well may it mislike the ruler of the Heathobeards and every thane
    of that people when the lady goeth into hall with a prince born
    of Danes, amidst the high company; upon him do glisten heirlooms
    of their ancestors, ringed harness, once Heathobeardic treasure,
    while they could keep the mastery of those weapons and until
    they in an unlucky moment led to that buckler play their dear
    comrades and their own lives. Then saith one over the beer, one
    who observes them both, an old lance fighter.… ‘Canst thou, my
    friend, recognise the blade, the precious steel, which thy father
    carried into battle, wearing his helmet for the last time, where
    the Danes slew him? … and the masters of the battlefield were the
    fiery Scyldings! Now here a boy of one of those banesmen walketh
    our hall … wearing the treasure which by right should have
    been thine!’ So urged and egged on at every turn with galling
    words, at last the moment comes that for his father’s deeds the
    lady’s thane sleepeth bloodspattered after the falchion’s bite,
    life-doomed! The other escapes alive! By-and-by the sworn oaths
    of the warriors on either side will be broken, when in Ingeld’s
    mind rankle war purposes, and care has lessened his domestic
    sorrow! Therefore I deem not the loyalty of the Heathobeards
    nor the alliance with the Danes secure, or the friendship firm!
    (2033-2069, slightly abridged.)

What a consistent light this passage throws incidentally on the
quarrels which, in spite of the Geats and Swedes being bound together
in friendship by the marriage of Beowulf’s mother, broke out again and
again, according to the poem, between the two kindreds--quarrels in which
Beowulf himself is represented as taking no part, presumably because,
according to tribal custom, his blood relationship to both kindreds was
a bar to his taking up the feud or assuming the part of the avenger! And
how the whole story of Beowulf’s paternal kindred reveals the melancholy
fact that, however great the force of tribal custom in controlling feuds,
the wild human nature of hot-blooded tribesmen was wont to break through
restraints and often ended in the outlawry of tribesmen and the breaking
up of kindreds!

[Sidenote: Summary of the evidence of Beowulf.]

To sum up the results obtained from the study of tribal custom as
incidentally revealed in Beowulf:--

(1) There is no feud within the kindred when one kinsman slays another.
However strong the natural instinct for avengement, it must be left to
fate and natural causes. Accidental homicide does not seem to be followed
even by exile. But murder within the kindred breaks the tribal tie and is
followed by outlawry.

(2) Marriage between two kindreds is a common though precarious means of
closing feuds between them. The son of such a marriage takes no part in a
quarrel between his paternal and maternal relations.

(3) When a marriage takes place, the wife does not pass entirely out
of her own kindred into her husband’s. Her own kindred, her father and
brothers, maintain a sort of guardianship over her, and the son in some
sense belongs to both kindreds. He may have to join in his maternal
kindred’s feuds, and he may become the chieftain of his maternal kindred
on failure of direct male succession, even though by so doing he may
have to relinquish the right of chieftainship in his paternal kindred to
another kinsman.

Finally, in passing from the blood feuds to the composition substituted
for them, after what we have learned from Beowulf of tribal custom, there
need be no surprise that maternal as well as paternal relations are found
to be interested in them. We may fairly judge that tribal custom, in the
stage in which we find it in Beowulf and later in the laws of various
tribes, would not have been true to itself, had this been otherwise.




[Illustration]




CHAPTER IV.

_TRIBAL CUSTOM OF THE IRISH TRIBES._


I. THE ERIC FINE OF THE BREHON LAWS.

[Sidenote: Goidelic tribal custom differed from Cymric.]

Returning now once more to the examination of tribal custom and the
structure of tribal society in the case of tribes belonging to the Celtic
group, it might be expected that Cymric customs would be likely most
closely to accord with those of the Celtic tribes of Ireland, Brittany,
and Gaul. But it must be remembered that the Cymry whose customs are
contained in the Codes, whatever their original Continental position may
have been, are supposed to have come into Wales from the North, with
Cunedda and his sons. The Codes therefore probably represent the customs
of the Cymry of ancient Cumbria north of the Solway Frith, rather than
those of the Britons, whether Goidels or Cymry, dwelling in South Wales
and more or less subject for generations to Roman rule.

If the theory of the emigration from Wales and Cornwall into Brittany,
as the consequence of the Saxon invasion, be correct, the Britons who
emigrated into Brittany may never have shared the peculiar customs of the
immigrants into Wales following upon the conquests of Cunedda and his
sons. They may have had more in common with the Goidelic tribes of South
Wales than with the Cymric newcomers into Wales.

These considerations may well prepare the way for the recognition of
differences as well as resemblances between Cymric and Irish tribal
custom.

The system of payments for homicide amongst the ancient tribes of Ireland
as described in the Brehon Laws differed widely from that of the Cymric
Codes.[62]

In the first place, the Brehon laws describe no scale of galanas or
wergeld, directly varying with the social rank of the person killed.
Gradations of rank there were indeed, and numerous enough. But there
appears to have been only one _coirp-dire_, or body-fine, the same for
all ranks, namely seven cumhals or female slaves--the equivalent of
twenty-one cows.

[Sidenote: The Brehon _coirp-dire_ of all tribesmen the same: six cumhals
and one added.]

And when this _coirp-dire_, or price of the body or life of a man, is
further examined, it is found to consist of two parts: (1) one cumhal of
compensation (aithgin); (2) the six cumhals of the _coirp-dire_ proper.

In the tract ‘Of every Crime’[63] it is stated:--

    If the man who is dead has a son, he takes the cumhal of
    compensation alone. If not alive, his father is to take it. If
    not alive, his brother; if he be not alive, the nearest person
    to him is to take it. And then the coirp-dire is divided:

      3 cumhals to the son and the father;
      1 cumhal to the brother;
      1 cumhal to the son and father (_sic_);
      1 to the geilfine from the lowest to the uppermost man;

    --so making up the 6 cumhals of the coirp-dire.

And in the ‘Book of Aicill’ (p. 537) are these lines:

    Three eric fines are counselled:

      (1) There is paid full compensation;
      (2) And fair honest coirp-dire;
      (3) And honour-price is paid.

[Sidenote: The _eneclann_ or honour-price varied with rank. The ‘eric’
fine included both.]

Besides this coirp-dire, therefore, was the _eneclann_, honour-price or
price of the face, _i.e._ payment for insult. And this was the payment,
by no means confined to homicide, which varied according to rank.

These two things then--the coirp-dire of seven cumhals and the
honour-price--made up together (with, in some cases, exceptional
additions) the eric fine.

Next as to the persons liable for its payment.

In the Corus Bescna[64] the following statement is made relating to
homicide in cases where the homicide was one of _necessity_:--

    The eric fine is to be paid by the slayer’s kindred (fine), as
    they divide his property (cro). He (the slayer) shall pay a
    cumhal of restitution (aithgin) and as much as a son or a father
    of the six cumhals of the dire-fine.

As to crimes of _non-necessity_:--[65]

    he himself is to be given up for it, with his cattle and his land.

[Sidenote: The kindred of ‘near hearths’ were liable for the whole eric.]

If he has not enough to pay the eric or is not to be caught, then

    it is to be paid by his son until his cattle and his land be
    spent on it (or failing him) by his father in the same manner.

Lastly, failing both the son and the father,

    it is to be paid by each nearest hearth (teallach) to him until
    all they have is spent, or full payment of the crime is made up
    among them.

So that, in the absence or in default of the murderer, at the date of
this Brehon tract, his family and kindred were answerable for the whole
of the eric in the case of wilful murder.

[Sidenote: The ‘hearths’ liable apparently to third cousins.]

The nearest hearths or ‘fine who bear the crimes of each kinsman of their
stock’ were, according to the Senchus Mor (i. p. 261):--

    1. _Geil_ fine;
    2. _Derb_ fine;
    3. _Iar_ fine;
    4. _Ind_ fine.

I think M. D’Arbois de Jubainville[66] is probably right in explaining
these four hearths or fines to be groups or grades of kindred. He divides
them thus:--

                  { father;
  The _geil_ fine { son;
                  { grandson;
                  { brother.

                  { grandfather;
      _derb_ fine { paternal uncle;
                  { nephew;
                  { first cousin.

                  { great-grandfather;
       _iar_ fine { great-uncle;
                  { great-nephew;
                  { second cousin.

                  { great-great-grandfather;
       _ind_ fine { great-great-uncle;
                  { great-great-nephew;
                  { third cousin.

Whether this interpretation of the Brehon scheme of the divisions of the
Irish fine or kindred be correct in every detail I shall not venture to
give an opinion, further than to say that, viewed in the light of other
tribal systems, it seems to me to be nearer the mark than the various
other attempts to make intelligible what after all are very obscure
passages in the Brehon Laws. The seventeen persons making up the four
divisions of the fine or kindred must be taken, I think, as representing
_classes_ of relations and not individuals; _e.g._ under the head ‘first
cousin’ must be included all ‘first cousins,’ and so on throughout.

So understood, the four hearths or groups of kindred liable for the eric
would include the sixteen grades nearest of kin to the criminal. He
himself, or the chieftain, would form the seventeenth person on the list.

The tract ‘Of every Crime’ seems to confirm the view above taken. It
states (iv. 241) that ‘for the crimes of every criminal’ he himself was
first liable.

    If he has absconded it goes upon his chattels; living chattels or
    dead chattels.

[Sidenote: The four ‘fines’ or ‘hearths’ were groups of kinsmen in grades
of relationship.]

The liability falls next upon his father and his brother, but, according
to the commentary, upon his son first, if he have one. These seem to be
the _geilfine_ relations or nearest hearth. And after them it falls,
according to the text, upon his ‘deirbhfine relations.’ And ‘if they have
absconded so that they cannot be caught, his crime goes upon his chief.’
But before it goes upon the chief the iarfine and other fines come in,
according to the commentary, and the _chief_ is said to be that of the
_four fines_.

    The reason why the crime goes upon the deirbhfine division and
    the iarfine division here before it goes upon the chief is
    because it is one chief over them.… _His chief_--_i.e._ the chief
    of the four families (p. 243).

On the whole, therefore, according to whatever rules of kinship a fine
may have been divided into the ‘four nearest fines or hearths,’ we
can hardly be wrong in considering them not as four artificial groups
including in all seventeen individuals, but as four _family groups_
arranged in the order in which liability for a kinsman’s crime was to be
shared.

[Sidenote: The same groups both received and paid eric.]

The full liability for the eric would then, as in the Cymric case, fall
upon the four groups or hearths as a whole. But, again as in the Cymric
case, the amount falling upon each of them was defined and divided among
the individuals composing it. The same family division held good both as
regards payment and receipt of eric.[67]

The general correspondence between the obligation to pay and the right to
receive a share in fines is shown by another passage from the Senchus Mor:

    The feini charge the liability of each kinsman [comfogius] upon
    the other in the same way as he obtained his eric fine and his
    inheritance.[68]

The penalties for any other crime than homicide fell in the first
instance upon the criminal alone, and the person injured took the whole
of the compensation for his injury.

But it was not so in the case of homicide. It was not a matter for the
individual alone. Both in payment and receipt it was, as with the Cymry,
a joint interest of the kindred.

The following passage makes this clear:--

    What is the reason that it is upon himself alone every crime that
    a person commits goes, _except killing_, provided he has the
    means of paying it?

    _Answer._ Because, though it be against him alone evil is done,
    _except killing_, it is to himself alone it shall be paid. Every
    _killing_, however, which he commits, it is not he alone that
    shall pay for, though he has the means of paying for it, but it
    goes upon the family (fine), and this is now the reason: because
    though it were himself or his son that had been killed, it is the
    whole family (fine) that would take the body fine (coirp-dire) of
    either of them, and not his son or father.[69]

[Sidenote: The solidarity of the kindred.]

A still clearer indication of this solidarity of the family or kindred
occurs in the Book of Aicill (p. 541) in regard to the right of the
several members, according to relationship, to share in composition for
a kinswoman abducted without their consent. If taken without her own
consent, honour-price was to be paid to herself, and also honour-price
was to be paid to her chiefs, and her relations, according to the nature
of their relationship to her. This presumably was for the breach of their
protection. Should death overtake her before she was restored, coirp-dire
and honour-price were to be paid to her family. In case of her consent
it was the same except that she could claim no honour-price for herself.

So far, then, we have felt our way to the following conclusions:--

[Sidenote: Summary of the rules as to eric.]

(1) That the eric for homicide in Ireland was shared by the family in
grades of relationship elaborately fixed, but which it is not necessary
to discuss further.

(2) In cases of innocent homicide the family, _i.e._ four nearest hearths
or grades of kindred, shared the eric with the slayer, _i.e._ the slayer
was only liable to pay a share of the eric.

(3) In cases of intentional homicide the goods of the murderer all had to
go first, and only the remainder was thrown upon his kindred. But (except
_inter se_) they were liable to the kindred of the slain for the whole of
what the slayer could not pay.

(4) The eric consisted of two parts--the coirp-dire and the honour-price.
The coirp-dire was seven cumhals, one of which was for restitution
(_aithgin_), the other six cumhals being the _coirp-dire_ proper.

(5) As in other laws, there were sometimes additional payments for breach
of protection or privilege &c.


II. THE HONOUR-PRICE (ENECLANN).

It is necessary next to direct special attention to the honour-price
(eneclann).

The question at once arises, _whose_ honour-price had to be paid?

In the first place, according to a passage in the Book of Aicill, it is
the honour-price of the _slayer_ that had to be paid, _i.e._ the higher
the rank of the slayer the greater the payment to the kindred of the
person slain.

[Sidenote: The honour-price of the slayer.]

The passage alluded to occurs almost at the beginning of the Book of
Aicill (p. 99). The heading, literally translated, is: ‘Fines are doubled
by anger (ferg).’ Then follows a long commentary, in which the point
seems to be limited to _secret_ murder, and the doubling seems to be the
result of the _concealment_. This is quite consistent with tribal feeling
as shown in other laws, concealment of the slain person on the part of
the murderer being considered a grave aggravation. The passage is as
follows:--

    _Fines are doubled by anger (ferg)._

    The double of _his own honour-price_ is due of each and every
    person, whether native freeman, stranger, foreigner, daerman, or
    looker-on, for the crime of _secret_ murder.[70]

And then the commentary goes on to say that if it was the same person who
killed and concealed

    a fine of 7 cumhals and full honour-price for the concealing, and
    7 cumhals and full honour-price for the killing, which is twice 7
    cumhals and double honour-price upon a native freeman for secret
    murder.

Obviously the _honour-price_ in both cases is that of the murderer, for a
little further on is a statement that

    the same fine is upon a native freeman for looking on at the
    killing of a native freeman, or a stranger, or a foreigner, or a
    daerman.[71]

[Sidenote: The honour-price of the slain or of his kinsmen.]

But besides this honour-price of the criminal, as we have seen, other
payments had apparently to be made to the relatives of the slain, for
breach of their protection or for injury sustained, and these were
measured by the honour-price of the recipients and not by that of the
criminal.

It is not quite clearly stated that these payments were a part of the
eric, but we may suppose that they were in a sense a buying off of the
right of feud, and accepted in lieu of the right of joining in the
avengement of the crime and in the feud, for which the eric was the
composition.

[Sidenote: The honour-price of the protector of the slain.]

A passage in the Book of Aicill (p. 107) incidentally seems to show that
the son of a person slain could choose whether to claim honour-price on
the scale of his own social rank, according to right of property, or of
the status of his father or grandfather, or that of the chieftain under
whose protection he lived.

    If, having been given his choice of taking honour-price in
    right of property, or honour-price in right of his father and
    his grandfather, he made choice of honour-price in right of his
    property, and decay came upon his property so that he has [left]
    but the kingship of the three handles--the handle of his flail,
    the handle of his hatchet, and the handle of his wood axe; he is
    (then) entitled to but one screpall for his worthiness if he be
    worthy; and if he be not worthy he is entitled to nothing, unless
    children have been born to him afterwards which he had not before
    on the day of making his choice, and if they have been born he
    has honour-price in right of them.

The passage goes on to mention the case of his having made choice ‘to
have honour-price in right of his relations or in right of his chief.’

In the Senchus Mor (i. p. 275), without direct mention of the case of
homicide, is the following statement:--

    The honour-price is fourfold. Full honour-price is due to one for
    his father, half honour-price for his father’s brother, one third
    honour-price for his son or his daughter, one fourth honour-price
    for his grandson.

On the whole it may be gathered from the Brehon tracts that, whilst the
coirp-dire or body fine was a fixed amount, the eric or full payment
was complex, involving, besides the coirp-dire, the honour-price of the
slayer according to his rank, and also payments to the relations of
the slain, regulated by their honour-price and rank, and nearness of
relationship to the slain person, by way of reparation for the insult or
injury involved, or for breach of their protection, &c.

In order to judge how much these payments of honour-price added to the
eric, we must seek to learn something of the character of the various
grades and ranks, and the amount of the honour-price of each.


III. THE GRADATIONS IN RANK UNDER THE BREHON LAWS.

The gradations in the honour-price, as stated in the ‘Crith Gabhlach,’
become very important from the light thrown by them upon the structure of
tribal society in Ireland.

[Sidenote: The ‘midboth’ or ordinary freeman and his food allowance.]

At the bottom of the list of these grades is mentioned the _midboth_ man
or ordinary freeman without land or cows (?). He is said to be entitled,
as food allowance, to the humblest fare of ‘milk and stirabout’ and for
himself alone (iv. 301).

His honour-price is only a dairt heifer or colpach heifer, and his
honour-price (as that of other grades) is also the limit of the value of
his oath or pledge. He is a man who has not yet attained to a household
of his own. When he has done that he seems to rise to the next rank of an
_og-aire_, _i.e._ a young _aire_.

Suddenly, we are told of the og-aire that he has seven cows and a bull,
seven pigs, seven sheep, and a horse. He also has a cow land, _i.e._
land to graze seven cows, for which a cow is paid every year by him to
his chief. He has an ox, and a fourth part of the needful for ploughing:
_i.e._ presumably he joins with others in making up a plough team of four
oxen. Surely these have been supplied to him by his chief, as in the case
of the Cymric ‘da.’ His proportionate stock (turcreicc) is eight cows,
which with his land he gets from a bo-aire, possessed of surplus cattle,
and he pays to him a food-rent ‘bes tigi’ (like the Welsh gwestva) of a
cow and a pig, &c. Should his stock increase he does not always become
at once a _bo-aire_, ‘because four or five such may occupy the land of a
bo-aire, and it would not be easy for each of them to be a bo-aire’ (iv.
pp. 305-309).

[Sidenote: The ‘bo-aire.’]

So in the same way a _bo-aire_ has land of twice seven cumhals, and he
has half of a full ploughing apparatus, and his proportionate stock (from
his chief) is twelve cows; and a colpach heifer is his food-rent; and his
honour-price is five seds.

A bo-aire may have a full and complete plough team and twenty cows
and other things, and he may even rise to the giving of proportionate
stock to tenants of his own if his stock should have grown too much
for his land. But he still may remain a bo-aire. He may, however, rise
from a bo-aire into a _flaith_ (or chief), when he has double as much
as an ‘aire desa’ and has established himself with a _green_ round his
homestead, and so surrounded his house with a _precinct_ in which he
can give protection to cattle taken in distress, this being one of the
important duties and functions of a chief (flaith) (iv. pp. 309-317).

It would seem that even when a man had risen to be the chief of his
kindred (fine) he might still be simply a bo-aire, and not necessarily
yet a _flaith chief_.

In another tract, among other disconnected items are the following:--

    Whatever number of the divisions of the bo-aires happen to be
    contending, though one of them be older than the others, the
    grade which is most wealthy, _i.e._ in point of wealth, it is it
    that takes precedence.

    He is a hill of chieftainship in the third person.

    Unless his father and grandfather were flaith, though he may be
    of the same race as to his origin, his chieftainship is lost to
    him.

    A plebeian chief is one whose father or grandfather was not a
    chief (flaith). (iv. pp. 379-381.)

It would seem from these statements that to become a flaith from the
rank of bo-aires something like an election was needful, and that wealth
weighed most in the election. It shows, however, that it was election
out of a class or family in which the flaithship descended from father
to son, and that one of the qualifications was that a man’s father and
grandfather before him must have been flaiths.

[Sidenote: The ‘aire desa.’]

So too in the ‘Crith Gabhlach’ (iv. p. 321) the _aire desa_ must be the
son of an aire and the grandson of an aire. He has (probably a minimum
of) ten tenants, five _giallna_ and five _saer_, and gets a food-rent
from each. But he himself takes proportionate stock from his chief, for
which he pays food-rent in the same way.

[Sidenote: The ‘aire ard.’]

The _aire ard_ has twenty tenants, ten _giallna_ and ten _saer_, and in
his turn he takes proportionate stock from his chief (iv. p. 325).

[Sidenote: The ‘aire tuisi.’]

The _aire tuisi_ has twenty-seven tenants, fifteen giallna and twelve
saer, and he takes himself proportionate stock from a king, ‘and
he makes corus-arrangements _in the raith right of his father and
grandfather_,’ whatever this may be (iv. 325).

[Sidenote: The ‘aire forgaill.’ The ‘Ri-tuaithe.’]

Above him is the _aire forgaill_, with forty tenants; and at the head of
the flaith or chieftain grade comes the _Ri-tuaithe_, who is the chief or
King of a Tuath.

[Sidenote: The lower grades take stock from the higher and pay food-rents
to them.]

We need not attempt to discuss the details of this hierarchy of
chieftains. It is enough that, throughout, the lower chieftain takes
stock from and pays food-rents to the higher chieftain, or the
Ri-tuaithe, as the case may be. So that the grades of tribal rank were
connected by the link formed by the receipt of an allotment of stock
from, and the payment of food-rent to, the next superior grade.

       *       *       *       *       *

Concentrating attention now on the ‘fine’ or group dependent upon a
single flaith or chief, we have seen that it consisted not only of his
kindred, but also of other dependents.

[Sidenote: The other tenants of a chieftain.]

We have seen that the chief had both _giallna_ and _saer_ tenants, and
that he supplied these tenants with stock, and received food-rent and
services in return.

In the second volume of the Senchus Mor[72] are two chapters on
_Saer-raith_ and _Daer-raith_. And the two kinds of tenancy are explained
somewhat as follows.

[Sidenote: Effect of continuance of tenancy for three lives.]

In the _saer_-raith the stock is given without any pledge, and the return
for it is one-third in value as food-rent every year, and the tenant
has to perform what is translated as homage, and to do service on the
dun-fort, at harvest time, and on military expeditions, but he does no
manual labour. The saer tenant cannot separate from his own hereditary
tribal chieftain, or refuse to take stock from him, and to that extent
he seems to be _adscriptus glebæ_. But if he chooses to receive stock
from another chief he can give it up when he likes, unless not having
returned it _for three lifetimes_, he has let the chief get a permanent
hold on him, but this must not be so as to rob his own tribe of their
innate rights (p. 219). This freedom to take stock from other chieftains
does not, therefore, seem to alter his position or that of his successor
as permanent tenants of their own hereditary chieftain. And this applies
both to his higher chieftain of _kingly_ rank, and his own lesser
chieftain of _flaith_ rank.

    He cannot separate from his own king (ri) at any time, either in
    _saer_-rath or _daer_-rath, unless the chief be indigent.… His
    own _aire_ of the _flaith_ grade is in the same position as his
    own _king_ (p. 211).

On the other hand, whilst in the case of stock taken from another
chieftain the contract can be ended on either side (except after three
lives), the hereditary king or chieftain cannot, without good reason,
withdraw the stock from the tenants.

    If he be his own king he can never take away either his _saer_
    stock or _daer_ stock unless the tenant be indigent, and there
    are no life separations between the tenant and his own hereditary
    king unless either of them act illegally, &c.…

The tightness of the tribal bond is shown still more clearly by the
statement that the chieftain himself is not competent to forgive, so as
to bind his successors, the food-rent due from the tenant.

    The food-rent is free to the successors of the chief; for the
    chief is not competent to forgive the payment of what supplies
    his house (p. 213).

So much we gather from the chapter on _saer_-rath. Now as to _daer_-rath
(p. 223). No one was bound to take _daer_ stock from any one, not even
from his own chieftain or king. Taking daer stock was therefore a matter
of contract, and a contract by a tribesman affected his _fine_ or kindred.

    The stock is received by the tenant either with or without the
    knowledge of the _fine_, for if it was unknown to them they could
    impugn his contract, but if it was within their knowledge, though
    the stock be ever so great, it is fastened upon them.

The fine had a voice, presumably lest it should be found that cattle
in their family herd, unknown to them, might belong to some outside
chieftain. And further, if continued for three lives, the obligation
might become permanent, as in the case of saer stock.

[Sidenote: ‘Fuidhir’ tenants become _adscripti glebæ_ after three
generations.]

Besides these _daer_ and _saer_ tenants who had taken stock from their
chieftain or king, and who seem to have been to a great extent _adscripti
glebæ_, there is mention of _fuidhir_ tenants. They seem to be strangers,
admitted, like the Cymric alltuds, upon a chieftain’s land, and, like
the Cymric alltuds, free to move away, until by residence for three
generations they also have become recognised as freemen, and at the same
time _adscripti glebæ_.

In the tract, ‘Divisions of the Tribe of a Territory,’[73] is the
following mention of the fuidhir tenants, confirming what has been said
above.

It occurs in the commentary:--

    His fuidhir tenants, _i.e._ they become free during the time of
    three persons; the fourth man is called a daer-bothach person;
    the _fifth is a sencleithe_ person.

The fifth person would be the great-great-grandson of the original
fuidhir. Further on (p. 287) is the following:--

    The families of the fuidhir tenants are subject to manifold
    divisions. The son is enriched in the same ratio as his father,
    and the father does not sell anything to the prejudice of his
    sons, grandsons, great-grandsons, or great-great-grandsons.

[Sidenote: The fifth generation become ‘sencleithe.’]

The chief point of interest is that the men of the fourth generation of
fuidhirs, according to the above-quoted passages, became _daer-bothach_
persons--half free men--and the fifth generation _sencleithe_, so that
the family, like the Cymric stranger, grew into freedom in four or five
generations.

This gradual growth of fuidhirs into sencleithe tenants in five
generations of occupation is illustrated by the retention of rights for
a corresponding period. In the Book of Aicill (p. 157) is a statement
that the land of an imbecile person (a fool’s land) is not lost to his
descendants, though they be also imbeciles, ‘till five persons:’ that is,
till the fifth generation.

The number of generations required does not, however, seem to have been
absolutely uniform.

The following is from the ‘Crith Gabhlach’ (p. 321):--

    If there be service from them (cottier and fuidhir tenants which
    he, the chief, brings upon the land) to ‘flaith’ chiefs to nine
    times nine (years?), they are cottiers and fuidhir tenants; they
    are _sencleithe_ tenants from that out.

In the Editor’s note (p. 350) to the sequel to the ‘Crith Gabhlach,’
there is a statement that the sencleithe tenant was a man who came
from his natural chief to settle under another chief; and if he or his
successors continued away during the time of three successive chiefs,
with the knowledge of the former chief, and unclaimed by him or his
successors, he or they then became ‘sencleithe,’ and could not go away of
themselves nor be claimed by the other.[74]

[Sidenote: Comparison with Cymric custom as to strangers, and as to the
link between chief and tribesmen made by bestowal and acceptance of
cattle.]

These passages, taken together, seem to imply that after five, or
sometimes three, generations of tenancy under the same chieftain or his
successors, the fuidhir tenants became in some sense _adscripti glebæ_,
like the Cymric alltuds, and at the same time formed a group of kindred
very much like a Cymric gwely.

Beyond this it is not easy to realise the position of the _sencleithe_
person. The text of the Brehon law tracts is often very obscure, and
the commentary so imperfect that the suggestion again and again occurs
to the student that the commentator may sometimes himself be groping in
the dark. Moreover, all the Brehon tracts have not yet been published,
so that we have as yet only part of the evidence before us. Still it
seems to be safe to say that there are indications that, as in Wales,
there were rungs in the social ladder by which the stranger or unfree
tenant might, after a certain number of generations, climb into something
like freedom and tribal rights at the cost of becoming at the same time
attached to the land of the chieftain; and that to the freeman also the
grades of social rank were in some measure dependent upon the social
position of fathers and grandfathers and great-grandfathers as well
as upon the acceptance of stock and the payment of food-rent and the
performance of services to chieftains of higher rank.

Further, without pressing too far resemblances which are not complete
between Irish and Cymric custom, it may at least be suggested that the
Irish example of the acceptance of stock by the young og-aire from the
chief of his family, or some higher chieftain whose man he was or became,
may throw some light upon the Cymric provision of _da_ or cattle to the
young tribesman who became ‘man and kin’ to the chieftain who gave it for
his maintenance. In the Irish instance, this bestowal and acceptance of
stock was part of a system which ran through all ranks and grades. And
it seems to have formed the natural link connecting one social rank with
another, and securing some kind of solidarity in the whole kindred or
tribe, in addition to the tie of blood relationship and sometimes as a
substitute for it.

We are now in a position to consider the amount of the honour-price of
the various grades in tribal society as exhibited in the Brehon tracts,
and to judge how far it was an important addition to the coirp-dire, and
whether it raised the Irish _eric_ to an amount at all near to that of
the _galanas_ of the Cymric Codes.

[Sidenote: The amount of the honour-price of each grade.]

In the ‘Crith Gabhlach’ the honour-price of each grade is given as
below:--

  Midboth men     a dairt heifer            or colpach heifer
  Og-aire         3 seds of cow kind
  Bo-aire         5 seds                    or = 1 cumhal
  _Aire desa_    10 seds                    or = 2 cumhals
  Aire ard       15 seds                    or = 3 cumhals
  Aire tuisi     20 seds                    or = 4 cumhals
  Aire forgaill  15 seds (_sic_; ? 30 seds) or = 6 cumhals.[75]
  _Ri_-tuaith                                    7 cumhals

The honour-price is given in the ‘Crith Gabhlach’ in seds. The number
of cumhals or female slaves is taken from a list in the Book of Aicill
(p. 475) and from a statement in the Senchus Mor (i. p. 76) in which the
honour-price of the aire forgaill is stated to be 6 cumhals.

It seems, then, that the honour-price of the Ri-tuaith, the highest
chieftain, was seven cumhals, whilst the honour-price of the bo-aire only
amounted to one cumhal, that of the og-aire to only three two-year-old
heifers, whilst that of the simple freeman without land or cattle was
only one single heifer.

[Sidenote: Difference between the Irish ‘eric’ and the Cymric ‘galanas.’]

The whole eric fine for homicide, including the coirp-dire and additional
payments of honour price, evidently fell very far short of that of the
Cymric galanas. Even in the case of the Ri-tuaith or highest chieftain
slain by one of his own rank, the eric can hardly have exceeded the
galanas of the young unmarried Cymric tribesman--viz. of sixty cows.

[Sidenote: The honour-price the limit of the power of protection.]

The importance under Irish tribal custom of the honour-price of a
tribesman, and its graduation in proportion to rank, position, and wealth
in the tribe, is apparent quite apart from the question of homicide. It
ruled the value of ‘his oath, of his guarantee, of his pledge, and of
his evidence.’ These according to the ‘Crith Gabhlach’ (p. 307) were
the four things in which he acted to the extent of his honour-price,
and he was not competent to undertake liabilities beyond this limit.
This becomes very important when we realise how large a place the
system of compurgation, or the support of a kinsman by the oaths of his
fellow-kinsmen, filled in tribal usage.

On the other hand, whilst the honour-price of a tribesman or chieftain
was the limit up to which his power of giving protection to his
fellow-tribesmen by oath or pledge or otherwise extended, it also was
the measure of his own protection. He was entitled to his honour-price
not only in case of homicide. If he was satirised or insulted, or if the
protection he afforded to others was violated, or his house was burned,
or any one stole from him, out of his house or in it, or forced his
wife or his daughter, his honour-price was the measure of the amount of
redress he could claim for the wrong. The analogy of this to the Cymric
_saraad_ is obvious, and something like it is found in most tribal
systems.

[Sidenote: A typical case of eric from the Senchus Mor.]

Finally, imperfect and vague in some points as may be the result of the
foregoing examination of the Irish evidence, we are now perhaps in a
position to appreciate, for what it is worth, the curious case described
in the Senchus Mor.[76] It may be taken so far as it goes as a precedent
or indication of the way in which the intricate matters connected with
the eric fine and honour-price were worked out in practice, though it is
difficult to explain all the rulings of the Brehon experts.

The matter in dispute was between two of the three principal races of
Erin--the Feini or ‘men of the North’ and the Ulaidh or ‘men of the
South.’ Fergus was the son of the King of the Ulaidh. Owing to a quarrel
amongst the Feini, Eochaidh Belbhuidhe, being expelled by Conn of the
Hundred Battles, had fled from his own tribe and put himself under the
protection of Fergus.

Whilst under the protection of Fergus, Eochaidh was killed by Asal the
son of Conn, and by four sons of Buidhe, and a grandson of Buidhe. The
latter, being the son of Buidhe’s daughter _Dorn_ by a stranger, was not
acknowledged by her kindred (fine).

The eric fine for this outrage upon the protection of Fergus was thus
arranged:--He was to have three times seven cumhals, _i.e._ seven
cumhals in gold, seven in silver, and land of seven cumhals called
_Inbher-Ailbhine_.

This was in satisfaction for the crime of the six murderers, viz. the
son of Conn, and the four sons and the grandson of Buidhe. Five out of
the six slayers apparently were able to pay their share. But not so the
sixth, viz. the grandson of Buidhe, the illegitimate son of his daughter
Dorn, who, being unrecognised by the kindred, apparently had no claim
for help from them. Consequently Dorn, the mother of the illegitimate
grandson, was handed over to Fergus as a bondwoman in pledge for her
son’s share of the eric.

So matters stood for a time. But a new trouble arose, which seems to have
upset the whole settlement and made it necessary to consider it over
again, from the beginning.

It would seem that after all there was a question whether the land
_Inbher-Ailbhine_ was permanently handed over, or only for a time, and
redeemable within the period of the lives of three chieftains, because
there was a question whether such a period had expired or not. And again
it was claimed that Dorn was only given in _temporary_ bondage as a
pledge for her illegitimate son’s share of the eric.

Besides these doubts, new circumstances had created a new position.
Fergus was unfortunate enough to have suffered a blemish on his face.
This, being a serious matter in a chieftain, was studiously kept from
his knowledge. Dorn, acting as bondwoman, was one day, according to the
story, preparing a bath for Fergus. Fergus complained that she was too
slow about it and struck her with his horse-whip. She, being vexed,
reproached him with his blemish, and for this insult Fergus slew her on
the spot. Very shortly afterwards Fergus himself died.

This then was the new position, causing a new quarrel between the two
tribes and involving the reopening of the old one. The interest lies in
the way in which it was settled.

[Sidenote: Final balance of payments agreed to.]

A balance was now struck between the crimes on each side, beginning
with the slaying of Eochaidh while under the protection of Fergus, as
follows:--

    Fergus, being king of a province, was entitled to 18 cumhals
    both as airer-fine and honour-price for the violation of his
    protection. There were also due to him 9 cumhals for his half
    airer-fine and half honour-price for Dorn’s insult in reproaching
    him with the blemish; so that this was altogether 27 cumhals to
    Fergus.

On the other side the Feini claimed as follows:--

    Honour-price was demanded by the Feini for the killing of (Dorn)
    the pledge, for the pledge they had given was without limitation
    of time, and for it 23 cumhals were payable by Fergus for
    airer-fine and honour-price, for the authority of Fergus was
    opposed at the time.

This seems to have settled the matter between the two tribes; _i.e._, so
to speak, the public matter between the Feini and Fergus’s people. But
there were individual rights to be considered also. Besides these 23
cumhals due to his tribe,

    Buidhe was entitled to honour-price for the killing of his
    daughter, _i.e._ he was an _aire-forgaill_ of the middle rank and
    was entitled to 6 cumhals as honour-price. Her brother was also
    entitled to honour-price for her death; he was an _aire-ard_ and
    was entitled to 4 cumhals as his honour-price.

Why the other brother had no claim for honour-price does not
appear--perhaps the one brother was the representative of the brothers as
a class. The total sum demanded on Dorn’s side was therefore 23 + 6 + 4
cumhals = 33 cumhals.

    So that this which the men of the South demanded amounted to 33
    cumhals, and the men of the North demanded 27; and a balance
    was struck between them, and it was found that an excess of 6
    cumhals was due by the men of the North, for which the land
    _Inbher-Debhline_ was again restored by the men of the North.

The commentary goes on to say:--

    And it is evident from this, that when a man has paid eric fine,
    should the person to whom it has been paid commit a crime against
    him, the law orders that his own eric fine should be restored to
    the former should it be better than the other eric fine.

In this case the land which had been taken by Fergus as ‘seven cumhals of
land’ was returned to pay for the balance due of six cumhals only.

It will be observed that whilst the father and brother of Dorn had their
own honour-price allowed for her slaying, no _coirp-dire_ was claimed for
the life of Dorn herself. The reason is given as follows:--

    What is the reason that the land was restored by the people of
    the North and that the eric-fine for the woman was not restored,
    whereas both had been given (to Fergus) as eric-fine for
    trespass? The reason is the woman committed an offence in the
    North for which she was forfeited, and the land did not commit
    any offence for which it could be forfeited, but it was returned
    in part payment for that trespass (_i.e._ the killing of Dorn).


IV. THE CURRENCY IN WHICH THE BREHON FINES WERE PAID.

Before leaving the Irish coirp-dire and honour-price, allusion must be
made to the currency in which they were paid.

[Sidenote: Payment in cumhals or female slaves.]

The most significant point was the payment in _cumhals_ or female slaves.
The cumhal was equated with three cows, but the payment was reckoned and
stated in cumhals. The female slave was the prominent customary unit of
payment, and doubtless a common object of commerce and trade.

[Sidenote: Cumhal = three cows or ounces of silver.]

The equation of the cumhal and the cow with silver was also remarkable.
The cow was equated with the Roman ounce, and the cumhal with three
ounces.

From a passage in the Senchus Mor (i. p. 247) and the Book of Aicill (pp.
371-377), the following table of values is evolved:--

     8 wheat-grains               = pinginn of silver
    24      ”       (3 pinginns)  = screpall
    72      ”       (3 screpalls) = sheep (B. of A. p. 377)
    96      ”       (4 screpalls) = dairt heifer
   576      ”       (6 dairts)    = bo, or cow, or unga
  1728      ”       (3 bo)        = cumhal or female slave

These silver values as compared with those of the Cymric Codes seem at
first sight to be singularly low. The Welsh cow, as we have seen, was
valued in silver at three Saxon ounces, and the male and female slave
each at a pound of twelve ounces. The Welsh value of the cow was roughly
three times, and that of the slave three and one third times, the Irish
silver value.

This Irish equation between cattle and silver must surely have been made
at a time when silver was of quite exceptional value in Ireland. But
there is some reason to believe that an earlier equation had been made
with gold of a very different character.

[Sidenote: An older equation with gold.]

Professor Ridgeway has called attention to an interesting story from the
life of St. Finian in the Book of Lismore (fol. 24, b.c.), in which an
ounce of gold was required for the liberation of a captive, and a ring of
gold weighing an ounce was accordingly given.

Now, if the ounce of gold is put in the place of the cumhal or female
slave, the gold values of the Brehon monetary reckonings would be:--

  Cumhal       = 576 wheat-grains = ounce
  Bo or cow    = 192      ”       = stater or ox unit
  Dairt heifer =  32      ”       = tremissis

These gold values, if established, would take their place at once as
following the gold system of Constantine, and probably might belong
therefore to a period in which the Continental ratio of gold to silver
would be 1:12, and the silver values fairly consistent with those of
the Welsh and other tribes. The cumhal or female slave would then equal
twelve ounces or one pound of silver as in Wales. This, however, must
not be taken as proved. It is with the silver values of the Brehon Laws
that we are here concerned. And we should be tempted to refer this silver
value to the period of Charlemagne’s attempted introduction of the ratio
of 1:4 were it not that, as we shall see, it seems to date back to a
period some centuries earlier.

There is another point of interest in connection with the early Irish
monetary reckoning.

[Sidenote: The reckoning in scores of Roman ounces, _i.e._ the ‘Mina
Italica.’]

We have seen that in the Brehon Laws the smallest silver unit was the
_screapall_ or scripulum. And it has already been mentioned that the
scripulum was also known as the _denarius Gallicus_, of which 24 went to
the Roman ounce of 576 wheat-grains, as in the Brehon Laws, and that a
score of ounces made the mina Italica of twice 5760 wheat-grains. It is
curious to find in a passage quoted by Petrie[77] from the _Fodla Feibe_
in the Book of Ballymote,[78] a full and exact appreciation of the number
of wheat-grains in the scripulum and the Roman ounce. The wheat-grains,
according to this passage, are to be taken from wheat grown on typically
rich soil which produces ‘the three roots,’ and 24 wheat-grains are the
weight of the ‘screapall’ of silver, and 576 the weight of the ‘uinge’
or ounce. Further it is stated that the full weight which the _Tinde_
or weighing bar is to weigh is--not a pound: there is no mention of the
pound--but _seven score ounces_.[79] Now this reckoning, not in pounds,
but in _scores of ounces_, has already been alluded to as, consciously
or unconsciously, a reckoning in so many of the _mina Italica_. Petrie
quotes a passage from the ‘Annals of the Four Masters’ in which this
payment in scores is illustrated.[80]

    A.D. 1029. Amlaff, son of Sitric, lord of the Danes, was captured
    by Mahon O’Riagain, lord of Bregia, who exacted 1,200 cows as his
    ransom, together with seven score British horses and three score
    ounces of gold and the sword of Carlus … and three score ounces
    of white silver as his fetter ounces, and four score cows for
    word and supplication, and four hostages to O’Riagain himself as
    a security for peace and the full value of the life of the third
    hostage.

Apart, however, from the monetary system of the Brehon Laws, the fact
remains that the real currency of early Irish custom seems to have been
in _cumhals_ or _female slaves_. The coirp-dire and the honour-price of
the Brehon tracts were reckoned in cumhals, and we shall find that there
appears to be good evidence that both payment in female slaves and the
equation of the female slave with three Roman ounces of silver go back to
a very early period.


V. THE IRISH COIRP-DIRE AND HONOUR-PRICE TRACED FURTHER BACK THAN THE
BREHON LAWS.

The evidence regarding the coirp-dire of the Brehon Laws and its payment
in female slaves does not rest on those laws alone.

[Sidenote: St. Patrick’s ‘pretium hominis’ of ‘seven ancillæ.’]

St. Patrick, in his ‘Confessions,’[81] treats the _pretium hominis_ as a
well-known unit of value. These are the words of St. Patrick:--

    Vos autem experti estis quantum erogavi illis qui judicabant per
    omnes regiones quas ego frequentius visitabam; censeo enim non
    minimum quam pretium quindecim hominum distribui illis.

    You know by experience how much I have paid out to those who
    were judges in all the regions which I have often visited; for I
    think that I have given away to them not less than the _pretium
    quindecim hominum_.

Further, in the ‘Tripartite Life’ St. Patrick is represented as putting
the alternative between the death of a transgressor and the payment of
seven cumhals (‘_Aut reum morti aut VII. ancillas reddere debet_’).[82]
The evidence for this coirp dire and its payment in ancillæ seems to be
thrown back by these passages to the fifth century.

[Sidenote: Evidence of the ‘Canones Hibernenses.’]

Further, when we turn to the series of ‘Canones Hibernenses’ published in
Wasserschleben’s work, _Die Bussordnungen der abendländischen Kirche_ (p.
136), we find repeated evidence that the ‘pretium hominis,’ or ‘pretium
sanguinis,’ of seven ancillæ, was a well-recognised unit of payment in
ecclesiastical quarters more or less connected with the Irish and Breton
Churches.

The first group of these Canons is headed ‘_De disputatione Hybernensis
Sinodi et Gregori Nasaseni sermo de innumerabilibus peccatis incipit_.’

The first clause of this group imposes a penance for parricide of
fourteen years in bread and water and satisfaction; or half this only if
there was no intention.

The next clause imposes for ordinary homicide seven years’ penance in
bread and water.

Clauses 8 and 10 fix the ‘prætium animæ’ of a pregnant woman (including
woman and child) at twelve ancillæ.

[Sidenote: _Ancilla_ of same value in silver as the Brehon _cumhal_.]

Clause 9 fixes for us the silver value of the _ancilla_ and seems to show
that it was the same as the silver value of the cumhal in the Brehon Laws.

The clause is as follows:--

    XII. Altilia[83] vel XIII. sicli (? XII.) prætium uniuscujusque
    ancillæ.

Ecclesiastical usage retained to some extent the use of Roman
phraseology. The siclus or sicilicus, as we have already seen, was the
didrachma of two Roman _argentei_ or silver drachmæ. And as the drachma
after Nero was one eighth of the Roman ounce, so the _siclus_ was
one quarter. The Altilia was the ‘fattened heifer’ possibly of Irish
custom.[84] Twelve fattened heifers or sicli equalled therefore three
Roman ounces--_i.e._ the exact silver value of the cumhal of the Brehon
Laws. Here, therefore, in these so-called Irish Canons the ancilla seems
to be reckoned at the Brehon silver value of the cumhal.

Having gained this point we proceed to examine the other clauses.

In title III., headed ‘_Synodus Hibernensis decrevit_,’ are the
following:[85]--

[Sidenote: Seven ancillæ the price of a man’s life.]

    Sanguis episcopi vel excelsi principis vel scribæ qui ad terram
    effunditur, si colirio indiguerit, eum, qui effuderit, sapientes
    crucifigi judicant, vel VII. ancillas reddat.

    The blood of a bishop or high prince or a scribe poured on the
    ground, _si colirio indiguerit_,[86] the ‘sapientes’ judge that
    he who sheds it shall be crucified or pay seven ancillæ.

Here, obviously, the VII. ancillæ are the price of the life of the
criminal--the seven cumhals of the coirp-dire. The canon adds the
following:--

    Si in specie, tertiam partem de argento et comparem verticis
    de auro latitudinem nec non et similem oculi de gemma pretiosa
    magnitudine reddat.

    If paid in specie, one third must be paid in silver, and of
    gold of the size of the crown of the head, and also the like in
    precious stone of the size of an eye.

These passages seem to have a curious correspondence with the following
passage in the Brehon Laws (sequel to the ‘Crith Grabhlach,’ iv. p.
363):--

    As to the shedding of a bishop’s blood, if it reaches to the
    ground as blood that requires a tent the guilty person is to be
    hanged for it, or it is seven cumhals that are to be paid for his
    sick maintenance and his eric.

    If the wound be in his face, the breadth of his face of silver is
    paid, and of the crown of his head of gold.

The canons go on to state that if the blood does not reach the ground
_nec colirio indigeat_ the hand of the striker is to be cut off, or the
half of VII. ancillæ paid, if the act is done with intention; if not, the
price of one ancilla is to be paid.

Another clause states that if a bishop be struck or violently handled,
without effusion of blood, half the price of VII. ancillæ is to be paid.

In all these cases the fines are reckoned in a unit of VII. ancillæ or
the half of it. The cutting off of the hand of the criminal is reckoned
as equal to half of VII. ancillæ. The VII. ancillæ is the recognised unit.

When, in other clauses, dealing with the case of the same things done
to a _priest_, a lesser punishment is decreed, still _the price of VII.
ancillæ_ is the price of the life of the criminal. If the blood of a
priest is shed and reaches the ground, _donec colorium subfert_, the hand
of the criminal is to be cut off, or half of VII. ancillæ to be paid, if
the act be intentional. If not intentional, the price of one ancilla is
enough.

In title IV., _Dejectione_, after a clause stating that he who ejects a
poor man kills him, and he who meets a person ready to perish and does
not succour him kills him, there follows this clause:--

    Si quis jecerit episcopum et si mortuus fuerit, accipiatur ab eo
    pretium sanguinis ejus L. ancillas reddit, id est VII. ancillas
    uniuscujusque gradus vel l. annis peniteat et ex his accipiuntur
    VII. ancille de jectione ejus.

    If any one ejects a bishop and if he should be dead, let there
    be received for him the price of his blood, let him render
    fifty ancillæ, _i.e._ seven ancillæ for each grade of rank, or
    do penance fifty years, and from these shall be received seven
    ancillæ _de jectione ejus_.[87]

[Sidenote: ‘Pretium sanguinis’ seven ancillæ.]

Here the ordinary ‘_pretium sanguinis_’ or _coirp-dire_ is again clearly
reckoned at VII. ancillæ, and the bishop, being of the seventh grade of
rank in the ecclesiastical hierarchy, is to be paid for sevenfold.

It is also worth notice that in these clauses the cutting off of a hand
is reckoned as _half_ of the ‘_pretium sanguinis_.’ This is in full
accordance with the Brehon rule laid down in the ‘Book of Aicill’ (iii.
p. 349).

    Half the eric-fine of every person is to be paid for a foot, a
    hand, an eye, a tongue.

But inasmuch as the ‘eric-fine’ in this case might be taken by mistake to
include the honour-price as well as the coirp-dire, the commentary adds:--

    He is entitled to half ‘coirp-dire’ and half compensation
    (aithgin) and full honour-price.

The loss of the hand was reckoned at half the coirp-dire. The full
honour-price was due for the insult or assault.

Yet another clause in these canons seems to show that not only the
coirp-dire of seven cumhals was familiar to the makers of the canons,
but also the honour-price.

In the Brehon Laws the honour-price was payable for breach of a
chieftain’s protection, and in the case of the Ri-tuaith or kingly
chieftain of a Tuath the honour-price was, as we have seen, seven
cumhals. And so also was that of the bishop of the church in his
territory.[88]

[Sidenote: ‘Honour-price’ of a bishop or king seven ancillæ.]

Accordingly, in the following clause in the canons the bishop is put in
the same position as a king, with what was practically an honour-price of
seven ancillæ:--

    _Patricius dicit_: Omnis qui ausus fuerit ea quæ sunt regis
    vel episcopi aut scribæ furari aut rapere aut aliquod in eos
    committere, parvipendens dispicere, VII. ancillarum pretium
    reddat aut VII. annis peniteat cum episcopo vel scriba.

    _Patricius dicit_: Every one who shall dare to steal anything
    belonging to a king or bishop or scribe, or to take away from
    or commit anything against them heedlessly, shall pay the price
    of seven ancillæ or do penance for seven years with a bishop or
    scribe.[89]

So that, though it is not very easy to put an exact date upon these
canons, they seem clearly to adopt and confirm for ecclesiastical persons
the Irish coirp-dire of seven ancillæ, and the highest honour-price also
of seven ancillæ. And further the _ancilla_ of these canons was, it
appears, of the same silver value as the _cumhal_ of the Brehon Laws.


VI. THE BRETON OR GALLIC WERGELD OF THE SO-CALLED ‘CANONES WALLICI.’

It is perhaps possible with help from another set of canons to obtain
further evidence of Celtic usage as to the fine for homicide, and what
is still more to the point, to trace it back to the Continental side of
the Channel.

[Sidenote: The so-called ‘Canones Wallici’ of perhaps the Breton Church.]

At the end of the Latin version of the Dimetian Code of South Wales are
appended as part of chapter XLIX. several clauses which do not belong to
the Code and are quite inconsistent with its provisions. These clauses
are carelessly extracted, with variations, from a set of canons which,
from their thus partly appearing at the end of the Latin version of the
Dimetian Code, have come to be known as the ‘Canones Wallici.’

The oldest MS. of this document is referred to the 8th century, and
the canons themselves are referred by Haddan and Stubbs to the 7th
century.[90]

It is not at all clear that, notwithstanding the name they have acquired,
they are of Welsh origin.

The intercourse between the missionary monks and churches of Brittany,
Cornwall, Wales, and Ireland was so intimate that there is no difficulty
in understanding how a Welsh scribe or copyist falling upon these canons
should add extracts from them to a Latin copy he was making of the
Dimetian Code. Whether of Welsh origin or not, some of them may have been
used, amongst others, by the Church in South Wales.

It may seem presumptuous to doubt their Welsh origin after the opinion
expressed both by Wasserschleben and such competent authorities as Haddan
and Stubbs, to whose labours the student is so greatly indebted. But that
opinion is doubtfully expressed, and reference is made by them to the
fact that two of the three MSS. describe the collection of canons not as
‘Canones Wallici’ but as ‘_excerpta de libris Romanorum et Francorum_,’
and ‘_excerpta de libris Romanis et Francorum_’ while the third, of the
8th century, does not seem to have any heading but ‘_Incipit justicium
culparum_.’ Haddan and Stubbs assign the origin of these canons to that
period (c. A.D. 550-650) during which both the Welsh Church and the Welsh
Principalities appear to have become organised, _i.e._ to the period
following St. Patrick and St. Finian, during which the monastic churches
of South Wales were the channel of intercourse between the Breton and
Irish Churches. This _collection_, according to the same authority, may
date from the 7th century.

The Canons may have been meant for use on both sides of the Channel. And
as they are ‘_excerpta_’ from books of the Romans and Franks, they seem
to originate from the Continental side, however much they may have been
used in Wales.

When we come to examine them, they bear every evidence of being
‘_excerpta_,’ and we know from the _excerpta_ of Isidor what different
materials may be brought together in such a collection. There is no
continuous plan or order apparently running through the whole. And
certain of the canons, chiefly those relating to _homicide_, seem to be
marked off from the remainder by the payments being made throughout in
‘_ancillæ_’ and ‘_servi_’; whilst in most others the payments are made
in _libræ argenti_ or in _libræ stagni_, or occasionally in _solidi_,
_unciæ_, and _scripula_.

The safer course may be, therefore, to treat them, not as a consistent
and single set of canons, but as _excerpta_ from various sources.

[Sidenote: The clauses as to homicide.]

Following the eighth-century MS. as most likely to be correct in its
text, the _excerpta_ relating to homicide are these:--

    C. 1. Si quis homicidium ex intentione commiserit, ancillas III.
    et servos III. reddat et securitatem accipiat.

    Canon 1. If any one by intention shall have committed homicide,
    let him pay three ancillæ and three servi and acquire safety.

    C. 2. Si quis judicio fuerit competitus et præstando verum durus
    esse voluerit et ipsam intentionem fuerit interfectus, ancillas
    II. et servos II. reddi debere præcipimus. Quodsi manum aut pedem
    vel quemlibet membrum perdiderit similiter duas partes prætii se
    noverit accepturum.

    Canon 2. If any one, being brought to justice, tries to resist
    the arrest and is slain in the attempt, we declare that two
    ancillæ and two servi shall be given for him, but if he loses a
    hand or a foot or any limb let him likewise know that he shall
    accept two thirds of the price.

    C. 3. Si quis homicidii causa fuerit suspicatus et non ei titulus
    comprobandi, XL. et VIII. viris nominatis, ex quibus XXIV. in
    ecclesia jurent eum esse veracem, sic sine causa discedat. Quodsi
    non juraverit, ancillas III. et servos III. reddat et securitatem
    accipiat.

    Canon 3. If any one shall be suspected of homicide, but there
    are not means of proof (‘titulus comprobandi’), 48 men having
    been named, of whom 24 shall swear in a church that he is right
    (‘verax’), so he shall depart innocent (‘sine causa’); but if
    he [they?] shall not have sworn he shall pay _three ancillæ and
    three servi_ and be free.

    C. 4. Si servus ingenuum occiderit et culpa ingenui fuerit
    hoc, de fuste aut dextrali aut dubio aut de cultello fuerit
    interemptus, ipse homicida parentibus tradatur, et quidquid
    faciendi voluerint habeant potestatem.

    Canon 4. If a slave shall kill a freeman and it shall be the
    fault of the freeman, and he shall have been slain by a cudgel,
    or a hatchet, or a … or a knife, the homicide himself shall be
    handed over to the parentes and they shall have power to do what
    they like with him.

    C. 5. Si quis dominus servum arma portare permiserit et ingenuum
    hominem occiderit, ipsum et alium juxta se noverit rediturum.

    Canon 5. If any master permits his slave to carry arms and he
    kills a freeman, let him know that he must hand over the slave
    himself and another likewise.

    C. 6. Si quis ingenuus servum alterius sine culpa occiderit,
    servos duos domino. Quod si culpa fuerit servi alius, alius
    servus domino reformetur.

    Canon 6. If a freeman shall kill the slave of another without
    fault (of the slave), he shall pay two slaves to the master.
    But if it were the fault of the slave, another slave shall be
    restored in his place.

    C. 12. Si quis homicidium fecerit et fugam petierit, parentes
    ipsius habeant spacium intra dies XV., ut aut partem restituant
    et securi insedeant, aut ipsi de patria vadant; post hoc si
    ipse interemptor venire voluerit, reddat medium quod restat et
    vivat securus. Quodsi interim occisus fuerit, mancipium et quæ
    acceperint faciant restaurari.

    Canon 12. If any one shall have done homicide and shall have
    sought flight, his parentes shall have the space of fifteen days,
    in order either to make their share of restitution and remain
    safe, or themselves quit the country. After this, if the slayer
    himself wants to return, he shall pay the remaining half and
    be safe. But if in the meanwhile he shall be slain they shall
    cause the slave [? slaves] and whatever they had received to be
    restored.

[Sidenote: Payments of six _ancillæ_ or _servi_ for homicide. The slayer
to pay half and the parentes half.]

Here, apparently, is a fairly complete and consistent set of canons
relating to homicide. All the payments are to be made in _ancillæ_ and
_servi_. And the payment for intentional homicide is apparently a fixed
payment of three ancillæ and three servi, _i.e._ six slaves in all.
Canons 1 and 2 are consistent and conclusive on this point.

Now, looking at these canons alone, two facts point very strongly to
an Irish rather than a Welsh connection, or perhaps we ought to say,
to a Goidelic rather than Cymric connection. In the Brehon Laws, as we
have seen, the payments are made in _cumhals_ or ancillæ, and the fixed
wergeld or _coirp-dire_ is strictly speaking _six_ ancillæ, and one added
for a special object, making seven cumhals in all. In the Cymric Codes,
on the other hand, the galanas is paid in cows and never in ancillæ, and
the amount of the galanas is graduated according to rank, that of the
lowest and youngest tribesman being 60 cows, nearly three times as great
as the six ancillæ and servi of these canons.

[Sidenote: The Irish coirp-dire apparently common to South Wales and the
Breton churches from fifth to seventh century.]

The force of these suggestions of Irish connection is greatly increased
by the fact that nowhere else in the collections of Canons and
Penitentials except in these so-called ‘Canones Wallici’ and the ‘Canones
Hibernenses,’ and closely allied sources, do we find the payments
expressed in ancillæ. And it must be remembered that the intimacy between
Breton and Cornish saints was mainly with South Wales, and through South
Wales with Ireland, and further that South Wales, until conquered by
Maelguin, was Goidelic rather than Cymric.

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.]

Those criminals who claimed protection at the altar were, under Gallic
ecclesiastical usage, as we shall see, saved from death, but at the
same time handed over as slaves to the parentes of the slain. And it is
not difficult to detect the lines of thought leading to this result. In
the ‘Penitentials’ attributed to St. Finian,[91] the spirit in which
the missionary churches of Brittany, Wales, and Ireland, from their
clerical point of view, dealt with crime very clearly appears. A layman,
in addition to making composition to the injured person, should also do
penance; but a cleric who possessed no property of his own could not pay
the composition (s. 9, p. 110). What, then, was he to do in a case of
homicide? The penitential (s. 23) lays down the rule:--

    If any cleric kills his neighbour he must undergo ten years’
    banishment with seven years’ penance. If after ten years he has
    acted rightly and is approved by the testimony of the abbot or
    priest, let him be received back into his country and let him
    satisfy the friends of him whom he has killed. Let him return to
    the father or mother (of the slain), if alive, saying ‘Behold I,
    as for your son, will do whatsoever you tell me.’ If he does not
    rightly do this he is not to be received--‘in eternum.’

Then in s. 53 is added, ‘If any one will propose better rules we will
accept and follow them.’

To sum up the evidence of the canons, we can hardly claim to have done
more than to have connected the coirp-dire of the Brehon Laws with the
_pretium hominis_ of St. Patrick, and with the _pretium sanguinis_ of
the ‘Canones Hibernenses,’ and with the clauses relating to homicide
excerpted by the compiler of the so-called ‘Canones Wallici’ from the
books of the Romans and Franks.

The connection, though traceable only through ecclesiastical channels,
seems to establish a continuity as regards the fixed payment for homicide
between the Breton and Irish churches, and possibly the churches of the
Goidelic portion of South Wales, of the fifth and sixth centuries.

[Sidenote: Continuity of Irish and Breton custom as regards the ‘pretium
hominis’ and payment in ancillæ.]

If it were suggested that the _pretium hominis_ of seven ancillæ might
be an ecclesiastical invention originating with the missionary churches
of the Armorican districts of Gaul, we should still have to inquire why
these churches differed so much from other Gallic churches. Everywhere
else the Church, finding it impossible to get rid of a deep-rooted
custom, seems to have made compacts with the secular power, adopting
the customary system of wergelds prevalent in each of the conquered and
converted tribes, and giving to the several grades in the ecclesiastical
hierarchy graduated wergelds placing them on a level with corresponding
classes of tribesmen or laymen. Even in these Celtic Canons the clerical
instinct, whilst apparently adopting the fixed wergeld or coirp-dire for
laymen, claimed for the clergy a graduated wergeld.

The bishop, as we have seen according to the canons, claimed a sevenfold
_pretium hominis_--seven times the price of seven ancillæ--because of
his rank in the clerical hierarchy. He claimed too the _honour-price_ of
seven ancillæ--the same as that of the Irish chieftain of a district for
breach of his protection or precinct. The bishop seems to place himself
here as elsewhere in these matters, on a level with the secular prince or
even with the king.

And again, if St. Patrick in his ‘Confessions’ (a work the authenticity
of which is generally accepted) could use, as he did, the _pretium
hominis_ as a well-known unit of payment, it would seem that at least as
early as the end of the fifth century the value of the _pretium hominis_
as a unit of payment was perfectly well understood. And this in itself is
a proof of further antiquity.

The redeeming of baptized captives from slavery was moreover a recognised
method of increasing the number of converts to the Christian Faith. In
his equally authentic Epistle to the subjects of Coroticus St. Patrick
speaks of the Roman and Gallic custom of Christians to send holy and fit
men to the Franks and other nations with so many thousands of solidi for
redeeming baptized captives, while Coroticus was killing and selling
captives to a foreign people ignorant of God. Mr. Whitley Stokes, in
editing this letter, suggests that this passage points to a date before
the conversion of the Franks (A.D. 496).[92] The traffic in captives
and slaves, and their sale perhaps into a still pagan corner of France,
accords with the strangely local use of the _ancilla_ as the unit of
payment as well in the Canons as in the Brehon Laws.

What, then, are we to make of this fixed wergeld of seven ancillæ?
So far, we find it prevalent only in Ireland and in the Goidelic or
non-Cymric districts of South Wales and Brittany. And the evidence seems
to carry it back to the fifth century.


VII. THE WERGELD OF ANCIENT GALLIC CUSTOM. THE EVIDENCE OF CÆSAR.

[Sidenote: Cæsar does not state the amount of the Gallic wergeld, but the
Druids had jurisdiction in cases of homicide.]

There seems to be left but one possible further source of evidence as
regards the wergelds of the Gallic tribes before the Roman conquest, viz.
that of Cæsar. Speaking of the Druids, his words are these:--

    Illi rebus divinis intersunt, sacrificia publica ac privata
    procurant, religiones interpretantur. Ad eos magnus adulescentium
    numerus disciplinæ causa concurrit, magnoque hi sunt apud eos
    honore. Nam fere de omnibus controversiis publicis privatisque
    constituunt, et, si quod est admissum facinus, _si cædes
    facta_, si de hereditate, si de finibus controversia est, iidem
    decernunt, præmia pœnasque constituunt (vi. 13).

There is certainly nothing in these words, when carefully considered,
which indicates in the slightest degree whether the Gallic wergeld was
fixed, or graduated according to rank. They amount to this:--

    The Druids have cognisance of nearly all public and private
    controversies, and if any crime has been committed, if a
    murder has been done, if concerning inheritance, if concerning
    boundaries there is controversy, it is they who decide, and they
    fix the compensation and penalties.

On the occasion of any murder committed, there would be plenty of room
for controversy whether the wergeld were fixed or graduated according to
rank, or even, as is quite possible, left open to the judgment of the
Druids. So that we gain nothing from Cæsar’s evidence on this particular
point, further than that the penalties for slaying were within the
jurisdiction of the Druids.

It may, however, be well to notice that this passage has been the subject
of controversy upon another point of interest to this inquiry: viz. on
the question whether the evidence of Cæsar should be taken as in favour
of the theory of the communistic ownership of land in Gaul or that of
individual ownership.

M. Fustel de Coulanges[93] has argued with great force that the statement
of Cæsar that the Druids were accustomed to settle controversies whether
_de hereditate_ or _de finibus_ implies that in his view there must
have been something like private property whether of individuals or of
families.

[Sidenote: The evidence of Cæsar on tribal landholding.]

Now if a connection may be traced between the liability of the whole
kindred for wergeld and the occupation of land by kindreds, with lesser
divisions into something like _gwelys_, then, without pressing the point
too far, without suggesting that the Welsh or the Irish form of tribal
occupation of land may have been exactly that which in Cæsar’s time
prevailed in Gaul, we may at least say that the analogy of the Welsh and
Irish examples would lead us, from a tribal point of view, to judge that
the form of land occupation in Gaul was not likely to be either absolute
individual or absolute communal ownership. And as under Welsh and Irish
tribal custom and forms of land occupation there was plenty of room for
public and private controversies both _de hereditate_ and _de finibus_,
it may fairly be suggested that some form of tribal land occupation
would at least be more consistent with what Cæsar recorded in the few
sentences under review than either complete individual or complete
communal ownership would be.

But, passing from the passages already quoted to Cæsar’s further
statements relating to the Druids, light seems to pour from them into
another matter otherwise very difficult to realise.

It is at first sight with something like amazement that we view the
arrogance of the pretension of the missionary priests of the Christian
Church to impose what must have been galling penances upon chieftains
and tribesmen who had committed crimes of murder or incest. Still more
surprised might we well be that they had any chance of securing obedience.

The evidence of Gildas and of the Cadoc records quoted in a former volume
is sufficient to show that to a most astonishing extent even chieftains
submitted to the penalties and penances imposed by priests and monks who
were claiming for themselves immunity from secular services and payments.
The very fact that the Ecclesiastical Canons contain the rules we have
examined as to the payments for homicide by the kindred of the murderer
seems to involve the bold claim of the Church to bring the punishment
of crime within its jurisdiction. We have seen also how in these Canons
the right of the bishop to be placed in social rank on a level with the
highest chieftains and princes and kings was already taken for granted in
the corner of Gaul so closely connected with South Wales and Ireland.

[Sidenote: The position of the Druids paved the way for clerical
pretensions.]

The statement of Cæsar opens our eyes to the extent to which under the
earliest prevalent system of religious belief the way was paved both for
these clerical pretensions and also for the submission of chieftains and
people to the penances imposed.

After describing, as above, the prerogatives of the Druids, Cæsar adds a
few words to describe the nature of the _sanctions_ by which obedience to
their awards was secured:--

    vi. xiii. 5. Si qui aut privatus aut populus eorum decreto
    non stetit, sacrificiis interdicunt. Hæc pœna apud eos est
    gravissima. Quibus ita est interdictum, hi numero impiorum ac
    sceleratorum habentur, his omnes decedunt, aditum sermonemque
    defugiunt, ne quid ex contagione incommodi accipiant, neque his
    petentibus jus redditur, neque honos ullus communicatur.

    Whoever of them, whether a private person or a people, does not
    stand to the award, they interdict from the sacrifices. This
    penalty is with them a most heavy one. Those who come under this
    interdict are looked upon as in the number of the impious and
    criminal. These all shun, avoiding touch or speech, lest they
    should be hurt by the contagion. Nor to these is justice given if
    they seek it, nor is any honour shared with them.

Then in the passage following Cæsar describes how strongly organised was
the power which the Druids represented and which they had at their back:--

    His autem omnibus Druidibus præest unus, qui summam inter eos
    habet auctoritatem. Hoc mortuo aut, si qui ex reliquis excellit
    dignitate, succedit, aut, si sunt plures pares, suffragio
    Druidum, nonnumquam etiam armis, de principatu contendunt.
    Hi certo anni tempore in finibus Carnutum, quæ regio totius
    Galliæ media habetur, considunt in loco consecrato. Huc omnes
    undique, qui controversias habent, conveniunt, eorumque decretis
    judiciisque parent.…

    Above all these Druids, there is one who holds the chief
    authority among them. To him, if dead, if there be one of the
    others excelling in dignity, he succeeds, or if there be many
    equal, by the suffrage of the Druids, sometimes even by arms,
    they contend for the chieftainship. At a fixed time of year they
    hold session in a consecrated place in the district of the Carnutes,
    which region is held to be the centre of all Gaul. Here all, from
    everywhere, who have controversies, assemble and submit to their
    decrees and judgments.…

    Druides a bello abesse consuerunt neque tributa una cum reliquis
    pendunt: militiæ vacationem omniumque rerum habent immunitatem.
    Tantis excitati præmiis et sua sponte multi in disciplinam
    conveniunt et a parentibus propinquisque mittuntur.

    The Druids are accustomed to keep away from war, nor do they pay
    tribute with other people; they have exemption from military
    service and a general immunity. Induced by so great advantages,
    many join their order both of their own accord and sent by
    parents and relations.

It is not necessary here to follow further these familiar passages in
the ‘De Bello Gallico’ or to inquire more deeply into the religion
of the Gauls. It is enough that the religion or superstition of the
Gauls was sufficient in itself, and sufficiently deeply believed in,
to fortify the influence and power of the Druids with the necessary
sanction, and to outlive the disintegration which Roman conquest, in
spite of its tolerance to tribal religions, must have in degree produced.
The testimony of Renan to the deep-rooted superstition of the Breton
population, and the lingering presence even to this day of instincts and
customs reaching back to a stratum of indigenous ideas underlying Roman
and Christian civilisation, shows, as Irish and Welsh legends do also,
that feelings of this kind are not subject to sudden change.

And when we try to realise the position and work of the early Gallic
or Breton or Cornish or Welsh or Irish churches from the fifth century
onwards, we seem to see how their position and work were made possible
only by the fact that what was technically called the conversion of a
people to Christianity was not after all so great a revolution as one
might at first sight have thought.

The missionary monks or priests, it might almost be said, _naturally_
took the place of the Druids in the minds of the people. They had power
to shut out the criminal from the sacrifices of the Christian altar,
just as the Druids could from theirs. The conversion, such as it was,
meant at least that in the belief of the people the spiritual powers were
transferred to the priest, and that the old sanctions of superstition
naturally followed the transfer. Thereby was secured to the Church
something of the same prestige and power which had once belonged to the
priests of the old religion.

[Sidenote: The tribes were used to the central power of the Druids and of
Imperial Rome and the Church took their place.]

When it is considered how the organised and world-wide system of the
Church, with its centre in Rome, continuing to some extent the prestige
and the civilisation of Imperial Rome, must have appeared to the
chieftains and petty kings of uncivilised tribes, it may be recognised
that in this respect also it resembled to their eyes the power of the
priesthood of the old religion with its centre at Chartres and reaching
in its authority from Britain to Southern Gaul. So that in this respect
also the way was paved for the Church in the minds of the people. The
tribes were used to the idea of a great central spiritual power, and in
the Church, by transfer from the old to the new religion, they found it
again.




[Illustration]




CHAPTER V.

_THE WERGELDS OF THE BURGUNDIAN AND WISIGOTHIC LAWS._


I. THE BURGUNDIAN WERGELDS.

[Sidenote: The result of contact with Roman and Christian civilisation.]

It is not proposed to do more in this chapter than very briefly to
examine the laws of the Burgundians and Wisigoths with reference to the
evidence they contain with regard to the results of contact with Roman
and Christian civilisation upon the solidarity of the kindred as shown in
the payment of wergelds.

The remoteness of these tribes from any connection with the Anglo-Saxon
invasion of Britain makes it unnecessary to do more than this. Indeed,
this chapter might have been omitted but for the useful light it may
throw upon the process of disintegration in tribal custom in the case
of tribes settling in countries with a long-established civilisation
superior to their own. In such cases tribal custom, however hardly it
might resist, had eventually to succumb, thus affording a strong contrast
with the Cymric and Irish examples, in which tribal custom was so much
better able to hold its own, and even succeeded to some extent in forcing
tribal rules upon the new Christian institutions.

The Burgundian laws, so far as they belong to those first issued by
Gundebald himself, fall between A.D. 501 and 516, and his reference to
his ancestors in his preface shows that, while he may have remodelled
the laws to meet altered circumstances, they were in part based upon
traditional customs of his people.[94]

But his people were in a new position. Geographically they were sharing
with a population still under Roman law the south-western part of the
Helvetian Valley--_i.e._ between Neuchâtel and Geneva, and a good part of
the old country of the Sequani on the Gallic side of the Jura.

[Sidenote: The method of settlement.]

They seem to have come into this district not altogether as conquerors,
but in some sense as invited guests. According to Tit. 54 of the laws
the newcomers, by the munificence of the Burgundian king and his
ancestors, had had delegated to them individually, in a particular place,
_hospitalitas_, which consisted of two thirds of the land and one third
of the slaves of the _hospes_ upon whom they were quartered, and by this
clause in the laws they were forbidden to take more.[95] It is generally
understood that this method more or less closely resembled the Roman
method of quartering soldiers upon a district.

The Burgundians therefore came into a district with a mixed population
of Romanised Gauls and Germans, already, after long residence and many
vicissitudes, living and settled under Roman law, and regarded by the
newcomers as Romans.

Thus two sets of laws became necessary, one for the Burgundian
immigrants, the other for the old inhabitants who were to continue under
Roman law.

[Sidenote: Homicide under the ‘Lex Romana.’]

Now under the Roman law there was no wergeld. And so in the Tit. II. of
the Burgundian _Lex Romana_ the slayer, whether a freeman or slave, if
captured outside a church was condemned to death. If the homicide was in
defence of life it was to be referred to judicial decision according to
the Novellæ of Theodosius and Valentinian.

If the slayer had taken refuge in a church, _quia de preciis occisionum
nihil evidenter lex Romana constituit_, the Burgundian lawgiver decreed
that if a freeman by a freeman should be killed, and the slayer should
flee to a church, he who confessed the homicide should be adjudged to be
the slave of the heirs of the person killed, with half of his property,
the other half to be left to the heirs of the slayer.

After this follows a clause, also of Burgundian origin, fixing the
payment by a freeman who has killed a ‘servus’ and fled to a church. The
price is to be paid to the lord of the servus on the following scale:

  For an ‘Actor’                                 100 solidi
  For a  ‘Ministerialis’                          60   ”
          ploughman, or swineherd, or shepherd,
          and other ‘servi’                       30   ”
          goldsmith                              100   ”
          smith (iron)                            50   ”
          carpenter                               40   ”
  ‘This by order of the King.’

[Sidenote: Under the Burgundian Law.]

Now if from these clauses of the Lex Romana which relate to the Roman
population, we turn to the Tit. II. of the Burgundian law proper of
Gundebald ‘De homicidiis,’ we may gather what the old customary wergelds
may have been, but at the same time recognise how strongly Roman law and
ecclesiastical influence had led Gundebald to break through what to the
Romanised conscience seemed to be the worst features of the system of
tribal wergelds.

[Sidenote: Original wergelds no longer adhered to. Homicide punished by
death.]

From Tit. II., ‘De homicidiis,’ it appears that the original wergelds
were these:

  Optimatus nobilis                    300 solidi
  Aliquis in populo mediocris          200   ”
  Minor persona                        150   ”
  Pretium servi                         30   ”

These wergelds closely correspond with those of the Alamannic and
Bavarian laws; but the first clause enacts that the homicide of a freeman
by another, of whatsoever nation, shall only be compounded for by the
slayer’s blood: thus overriding tribal usage and introducing the Roman
law.

The second clause enacts that if the homicide be in self-defence against
violence, half the above-mentioned wergelds should be payable to the
parentes of the slain.

[Sidenote: Homicide by a slave.]

Clause 3 enacts that if a slave, unknown to his master, shall slay a
freeman, the slave shall be delivered up to death and the master free
from liability. Clause 4 adds that if the master was privy to the crime
of his slave both should be delivered to death. Clause 5 enacts that if
the slave after the deed shall have disappeared, his master shall pay 30
solidi--the price of the slave--to the parentes of the slain. And lastly,
in clause 6, the parentes of the slain are in all these cases warned
that no one is to be answerable for the crime but the homicide himself,
‘because as we enact that the guilty shall be extirpated, so we cannot
allow the innocent to suffer wrong.’

The new law breaks away altogether from old tribal traditions, and an
attempt is made to treat homicide from the new point of view of reason
and justice as between one individual and another, with but little, if
any, regard to kindred.

[Sidenote: The traditional value of animals.]

From the law against theft we get a scale for the equation of cattle
&c. with gold. If a Burgundian or Roman ‘ingenuus’ steals away a slave,
horse, mare, ox, or cow, he is to lose his life, unless he takes refuge
in a church, and from the property of the criminal the price of the
stolen animal is, ‘in simplum,’ to be paid to the person robbed, unless
the thing stolen can be found and restored--_i.e._:

  For the slave                     25 solidi
  For ‘best horse’                  10   ”
  For moderate horse                 5   ”
  For mare                           3   ”
  For ox                             2   ”
  For cow                            1 solidus.

Thus from these traditional values, retained even under new circumstances
by the Burgundian law, we learn that the wergeld of the middle class of
freemen, ‘mediocres in populo,’ of 200 solidi, was still regarded as the
equivalent of 100 oxen or 200 cows.

There is no doubt in this case that the solidi were those of the Imperial
standard. The Burgundian Kingdom was destroyed by the Franks in A.D.
534--_i.e._ before the issue by Merovingian princes of solidi and
trientes of the Merovingian standard.


II. THE WERGELDS OF THE LEX WISIGOTHORUM.

The laws of the Wisigoths are too Roman to be taken as evidence of what
may have been the ancient tribal wergelds of the Goths.

[Sidenote: The tribal polity of the Goths broken up by Roman influences.]

Their rule extended to the Loire till they were driven back to the
Garonne by the Franks in the sixth century, and lasted in Spain and
Aquitaine to 711 when it succumbed to Arab conquest. The Wisigoths
conquered a country already under Roman law, with a mixed population of
German as well as Celtic and Iberian tribes. They were not the first
German intruders. They were invaders, but not altogether at enmity with
the Romans. Their princes, after the break-up of the Roman power, issued
gold coins--solidi and tremisses--in close imitation of those of the
Eastern Empire. Goth and Roman were encouraged to marry on equal terms.
And though there are traces of a scale of payments in composition for
homicide, it bears little trace of the tribal principle of the solidarity
of the kindred.

There is no scale of payments directly under the head of homicide, and we
are left to gather incidentally what the wergeld (if it can be so called)
may have been.

In a clause[96] added between 653 and 672 it was enacted that upon the
kidnapping of the child--son or daughter--of a free man or woman, the
criminal was to be delivered over into the power of the child’s father,
or mother, brother or nearest parentes, so that they may have power to
kill him or sell him. And if they desired it, they might demand the
composition for homicide from the criminal, _i.e._ 500 solidi (some MSS.
300 solidi), the crime being to the parents no less grave than homicide.
If the child could be recovered, half the composition for homicide was to
be paid, and if the criminal could not pay he was to become their slave.

This doubtful mention of 500 solidi or 300 solidi finds some explanation
in a later clause.

[Sidenote: The wergeld graduated according to the age of the individual.]

Indirectly, again, we get the scale in force for homicides in L. VIII.
Tit. IV. s. 161, of about the same date. It enacted that injuries
done by vicious animals, known to be such, were to be paid for _sicut
est de homicidiis_ by the ‘constituted composition’--_compositio
constituta_--and then the following scale is given:

  Aliquis honestus                       500 solidi
  Ingenuus persona, 20 years old and
    up to 50                             300    ”
  Ingenuus persona from 50 to 60         200    ”
  Older than this                        100    ”
  Youths of 15 years                     150    ”
     ”      14   ”                       140    ”
     ”      13   ”                       130    ”
     ”      12   ”                       120    ”
     ”      11   ”                       110    ”
     ”      10   ”                       100    ”
     ”       7 to 9                       90    ”
     ”       4 to 6                       80    ”
     ”       2 to 3                       70    ”
     ”       1 year                       60    ”
  Daughter or wife from 15 to 40         250    ”
      ”        ”        40 to 60         200    ”
      ”        ”        older            100    ”
  Under 15, half the payment for a male; liberti, half-payments.

[Sidenote: Innocent homicide no longer to be paid for.]

It is impossible to look upon this scale as fully representing ancient
Gothic tribal tradition. And when we turn to the title ‘_De cæde et morte
hominum_,’ which seems to belong to the same date, it becomes obvious
how far the spirit of these laws had wandered away from any tribal
standpoint and from all recognition of the solidarity of the kindred.
A homicide committed unknowingly (‘nesciens’) is declared to be in the
sight of God no cause of death. ‘Let the man who has committed it depart
secure.’[97]

Every man who killed another intentionally, and not by accident, was to
be punished for homicide. The punishment had, in fact, already become a
matter of criminal law. The prosecution for homicide was no longer to be
left only to the parentes of the slain, ‘for they might be lukewarm’ (s.
15). The judex ought to take the matter up, and on neglect of his duty
was to be liable for half the payment for homicide, viz. 250 solidi.
Strangers in blood as well as relations had already been enabled to bring
the accusation.

[Sidenote: Homicides fleeing to a church to be handed over as slaves to
the family of the slain.]

Chindasvinthe, who reigned from 642 to 653, had legislated in the same
direction. The question had arisen, what was to be done with homicides
who took refuge in a church and committed themselves to the protection of
God? Seeing that every one ought to be punished for his crime, he issued
an edict to settle this question once for all. He enacted that whatever
slayer or evil-doer the law required to be punished, no power whatever
should be able to shield from punishment. And although the criminal might
flee to the sacred altar, and in that case no prosecutor could drag him
away without the concurrence of the priest, yet the priest, having been
consulted, the sacrament having been given, was to repel the criminal
from the altar, and expel him from the choir, so that his prosecutor
might apprehend him. The criminal thus expelled was to be freed from any
further death penalty, but short of this was to be in the power of the
parentes of the slain, who might do what they liked with him, _i.e._ he
became their slave unless presumably the composition required was paid.

[Sidenote: Murder of a kinsman to be punished with death.]

The successor of this king (653-672) dealt with another point in which
tribal instinct was at variance with Roman law. With the dissolution of
the kindred disappeared the reason and traditional justification for the
rule that there was no feud and no wergeld within the kindred. Tribal
custom everywhere left the worst crime of all--murder of a parent or a
kinsman--without redress, at the same time unpardonable and unavenged. It
became, therefore, needful to promulgate an edict that the judex should
punish the murder of a kinsman by death. And in this case, if there were
no children, all the murderer’s property was to go to the heirs and near
relations of the murdered person. But if there were children of another
marriage, innocent of their parent’s crime, half only of the property was
to go to the children of the murdered kinsman, and half to the innocent
children of the parricide.

If the murderer had fled to the altar of a church he was to be delivered
up to the parentes or propinqui of the slain kinsman, to be dealt with
as they chose, short of death, and if there were no such parentes his
property was to go to the fisc. The murderer whose life was thus spared
was not to have the use of the property.

Lastly there is found in some of the MSS., as an addition to Lib. XII.
Tit. II., an edict of King Wamba, who reigned 672-680, which seems to
mark the last stage in the process of confining the punishment of the
crime to the criminal alone.

[Sidenote: The punishment had become a matter of criminal law and was
confined to the criminal alone.]

Up to this time, as we have seen, the murderer _with all his possessions_
was by law to remain the slave of the parentes, or the next heirs of the
murdered person, except in the one case of the murderer having children
by another wife. Thenceforth, if the murderer, according to the edict,
had children or wife free from participation in the crime, he alone
was to be delivered up to the parentes or next heirs of the dead. His
possessions were not to go to them, but to the children or heirs of the
_criminal_, on the ground that the punishment should in justice fall
alone upon the sinner, and not upon his innocent family. Clearly the
last tie of tribal instinct securing the solidarity of kindreds was now
broken. It had lost its ancient significance. Murder had become the
crime of an individual against the State, and a matter of criminal law.
The only survival of tribal feeling seems to have been that, as some
compensation to the family of the murdered man, the murderer whose life
the Church had saved was to become their slave.




[Illustration]




CHAPTER VI.

_TRIBAL CUSTOMS OF THE FRANKS AND OF THE TRIBES CONQUERED BY THE
MEROVINGIAN KINGS._


I. THE WERGELDS OF THE LEX SALICA.

In turning now to the Lex Salica the inquiry will again at first more or
less be a study of wergelds.

There are many difficult points in the construction of the Lex Salica,
and the capitularies connected with it, which, after all the learned
labour expended upon them, still remain unsettled. To attempt to discuss
them fully would involve an amount of research and erudition to which
this essay can lay no claim. All that can be attempted in this survey
of the traces of tribal custom in the laws of the Continental tribes is
to approach their text afresh in the light of the Cymric evidence, as
a tentative first step towards, at last, approaching the Anglo-Saxon
laws from the same tribal point of view and from the vantage-ground of a
previous study of the survivals of tribal custom elsewhere.

[Sidenote: The district within which the Lex Salica had force.]

The Lex Salica had force apparently at first over the Franks of the
district extending from the _Carbonaria Silva_ on the left bank of the
Meuse to the River Loire.

[Sidenote: The first sixty-five chapters about A.D. 500, but with later
alterations.]

The earliest manuscripts of the Lex Salica are considered to belong to
the late eighth or early ninth century. And the general opinion seems
to be that the first sixty-five chapters may be ascribed to the time of
Clovis, or at least to a period before Christianity had become general
among the Franks.

The reign of Clovis extended from A.D. 481 to 511, and may perhaps be
taken as covering the date when the sixty-five chapters were first
framed. There is, however, no proof that they were not modified
afterwards. For at the end of the celebrated chapter _De chrenecruda_
there is a clause in a later manuscript which implies that it was no
longer in force.[98]

If these sixty-five titles, in their original form, really go back to
the time of Clovis, the fact that they were allowed to continue in late
issues of the Lex Salica along with the additions made to it, is probably
enough in itself to excite suspicion that even these may not have been
allowed to remain as they originally stood without modification.

[Sidenote: Edict of Childebert II. A.D. 599 on homicide discourages
receipt and payment of wergelds.]

Particularly on the question of homicide and the liability of the
kindred of the slayer in the payment of the wergeld, it is difficult
to understand how the clauses relating to its payment and receipt, if
representing fully more ancient custom, could have been left altogether
unaltered after the decree of Childebert II. (A.D. 599), which may be
translated as follows:--

    Concerning homicides we order the following to be observed: That
    whoever by rash impulse shall have killed another without cause
    shall be in peril of his life. For not by any price of redemption
    shall he redeem or compound for himself. Should it by chance
    happen that any one shall stoop to (make or receive?) payment,
    no one of his parentes or friends shall aid him at all, unless he
    who shall presume to aid him at all shall pay the whole of the
    wergeld, because it is just that he who knows how to kill should
    learn to die. (Pertz, _Leges_, i. p. 10.)

The logic of this decree is curious. The slayer’s kindred were absolved
by it from liability if they chose to stand aloof. But, if they stooped
to help their kinsman at all, they must see to it that the whole
wergeld was paid, no doubt to avoid breaches of the peace from attempts
at private revenge if any part were left unpaid. But if the slayer’s
relations did not pay the wergeld--what then? The slayer was to be left
‘in peril of his life.’ From whom? It must have been from the vengeance
of the slain man’s kindred.

One would have thought that this decree would have defeated itself, for
apparently, whilst it absolved the murderer’s kindred from obligation to
assist the murderer to pay the wergeld, it left untouched the right of
vengeance on the part of the slain man’s relations, thereby, one would
have thought, multiplying cases of breach of the peace.

That clauses relative to receipt and payment of wergeld were left in the
Lex after this decree shows probably that the system of wergelds remained
practically still in force. People went on ‘living under the Lex Salica,’
after the date of the edict, and in spite of the latter no doubt wergelds
were paid and received. But whilst this may have been a reason why the
clauses regulating the payment and receipt of wergelds could not be
altogether omitted, it may also have made necessary the modification of
some of their provisions.

One may even venture to trace motives in the making of modifications
in favour of the fisc, which can hardly have had their root in ancient
tribal custom.

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.

    But if there be parentes on neither side,[99] paternal or
    maternal, then that portion (_i.e._ the second half) is to go to
    the fisc.

According to this clause, in the absence of the parentes, their half
share still has to be paid by the kindred of the slayer, but again the
fisc gets control of the lapsed portion which the parentes would have
taken had they been forthcoming.

[Sidenote: Addition to the Lex by Childebert I. A.D. 515-551 in the
interest of the widow (?) of the person slain.]

Amongst some clauses said to be added to the Lex Salica by Childebert I.
(A.D. 515 to 551) is a very important one, Tit. CI., _De hominem ingenuo
occiso_, which seems to show that, at that date, composition was still
encouraged by the law, but that some alteration was necessary in the
division of the wergeld amongst the kindred of the slain.[100]

    Si quis hominem ingenuum occiderit et ille qui occiderit probatum
    fuerit, ad parentibus debeat secundum legem componere; media
    compositione filius habere debet. Alia medietate exinde ei debet
    ut ad quarta de leude illa adveniat. Alia quarta pars parentibus
    propinquis debent. Id est, tres de generatione patris et tres
    de generatione matris. Si mater viva non fuerit, media parte de
    leudae illi parentes inter se dividant. Hoc est, tres de patre
    proximiores et tres de matre. Ita tamen qui proximiores fuerint
    parentes de prædictis conditionibus prendant.

    If any one shall have killed a freeman and he who slew shall have
    been ascertained, he ought to make composition according to the
    law to the parentes. The son (Cod. 2 ‘sons’) ought to have half
    the composition. After that, of the other half it ought to be
    for her (? the mother), so that she (?) comes in for a quarter of
    that leuda (or wergeld). The other quarter ought to go to the near
    parentes, _i.e._ three [parentillæ] of the kindred of the father
    and three of the kindred of the mother. If the mother shall not be
    alive, the half leuda (wergeld) those parentes divide amongst
    themselves, _i.e._ the three proximiores [_i.e._ nearest parentes]
    of the father and three of the mother, but so that the nearest
    parentes under the aforesaid conditions shall take [two thirds].

    Et tres partes illis duabus dividendam dimittat. Et nam et illis
    duabus ille qui proximior fuerit, illa tertia parte duas partes
    prendant, et tertia parte patre suo demittat.

    Three parts again it leaves to be divided between the other two
    [parentillæ]. For also of those two the nearest [parentilla]
    takes two thirds and leaves one third for [the parentilla of] the
    previous ancestor.[101]

There must have been some special object in this addition to the Lex.
Brunner, following the very plausible suggestion of Wilda and Boretius,
points out that the ‘mother,’ who, if alive, is to share in the second
half of the wergeld, may be the mother of the son who takes the first
half, _i.e._ the _widow of the person slain_, otherwise why should the
mother alone be mentioned, and not the father of the slain?[102] If this
view may be accepted the object of the clause becomes at once apparent.

Under Tit. LXII. no share is given to the widow. And we have learned
from the Cymric example the reason why tribal custom gave no part of
the wergeld of the husband to the widow. It was simply because there
was no blood relationship between them. The widow and her kindred would
have taken no part in the feud, and so took no part of the galanas in
composition for the feud.

The silence of Tit. LXII. and the force of the Cymric precedent warrant
the inference that it may have been so also under ancient Salic custom.
However this may be, the fact that an addition to the Lex was made,
whether in favour of the widow or of the mother, seems to show that
Roman and Christian influences had introduced other considerations than
those of blood relationship, so breaking in upon tribal custom and
necessitating special legislation.

[Sidenote: The three ‘parentillæ’ sharing in the wergeld.]

If this view may be accepted, and if (as we had to do in interpreting
the Brehon rules regarding divisions of the kindred) we may take the
word ‘son’ as meaning all the sons, and insert the word _parentillæ_ in
explanation of the three _proximiores_, so as to understand them (as in
the Brehon _Geilfine_ division) to be not three persons but three groups
of kindred, then these clauses become fairly intelligible and consistent
with Tit. LXII.[103]

The wergeld is divided into two halves and the second half (subject to
the newly inserted right of the widow or mother of the slain) goes to the
three groups of proximiores. What these three groups or parentillæ may be
is not very clear.

The father has been killed and his sons take the first half of the
wergeld. The other half is taken by the three nearer parentillæ. The
nearest group at first sight would be the descendants of the two parents
of the slain. The second group would be the descendants of the four
grandparents of the slain. The third group should include the descendants
of the eight great-grandparents of the person slain.

[Sidenote: The three ‘parentillæ’ include descendants of great-great
grandparents.]

But Brunner has pointed out that the division into paternal and maternal
lines of relationship begins with the slain person’s grandparents;
so that the three proximiores on both sides should go back to the
descendants of great-great-grandparents. He also points out that, as at
each step the nearer group are to take two thirds and those behind it one
third, the division between the three groups would be in the proportions
of 6:2:1. And he quotes a statement regarding the division of wergelds in
Flanders in the year 1300, in which the proportions of the payments of
the three groups of relatives were still as 6:2:1. The half falling to
the three groups being reckoned as 18/36, the division was as under:--

  Rechtzweers (Geschwister Kinder),       { paternal 6/36 }
  _i.e._ first cousins.                   { maternal 6/36 }
                                                          }
  Anderzweers (Ander-geschwister Kinder), { paternal 2/36 } 18/36
  _i.e._ second cousins.                  { maternal 2/36 }
                                                          }
  Derdelinghe (Dritt-geschwister Kinder), { paternal 1/36 }
  _i.e._ third cousins.                   { maternal 1/36 }

We may then safely, I think, follow Brunner’s cautiously expressed
conclusion that it is very probable that also in the Lex Salica under
the words ‘tres proximiores’ are intended relations belonging to three
separate parentillæ.[104]

       *       *       *       *       *

[Sidenote: The wergeld from the payer’s point of view]

So far we have dealt only with the _receivers_ of the wergeld. We have
now to consider the wergeld from the _payers’_ point of view. When at
last we turn to the title ‘_De chrenecruda_,’ which deals with the
_payment_ of the wergeld by the slayer and his kindred, we seem all at
once to breathe in the atmosphere of ancient tribal custom before it had
been materially tainted by the new influences, which the conquest of a
Romanised country and migration into the midst of a mixed population
necessarily brought with them. The force of tribal instinct survives
in this clause even though since the edict of Childebert II. it may
have been allowed to remain in the Lex partly on sufferance, and even
though some of its details have been made incoherent by the mutilation
it may have undergone. It was probably left in its place in the Lex,
together with the clauses regarding the receipt of wergeld, because,
even though the assistance of the kindred in the payment of wergeld had
been made optional and discouraged, the instincts of kindred were not
to be extinguished all at once. To save the life of a kinsman, kinsmen
will sometimes exercise the option. And the slayer, before he flees for
his life, will make his appeal to his kinsmen. The old traditional rules
for payment will have force in the feelings of those who, under all the
discouragements of the law, still choose to assist the slayer. Moreover,
the Mallus, it appears, still exercised jurisdiction over the option.

This celebrated clause may perhaps therefore be quoted as evidence for
so much of ancient tribal custom as to wergelds as the royal edict was
unable to extinguish all at once.

[Sidenote: The title ‘De chrenecruda.’]

Difficulty arises chiefly from the imperfect condition of the text of
one of the clauses. But, keeping close to Codex I. of Hessels and Kern’s
edition, the following translation may pass for our purpose (Tit. LVIII.):

    (1) Si quis hominem occiderit et, totam facultatem data, non
    habuerit unde tota lege conpleat, xii juratores donare debet
    [quod] nec super terram nec subtus terram plus facultatem non
    habeat quam jam donavit.

    If any one shall kill a man and, having given up all he
    possesses, he yet shall not have enough to satisfy the whole
    legal requirement, he ought to give the oaths of twelve
    co-swearers that neither above the earth nor under the earth he
    has any more property than he has already given up.

    (2) Et postea debet in casa sua introire et de quattuor angulos
    terræ in pugno collegere et sic postea in duropullo, hoc est
    in limitare, stare debet intus in casa respiciens, et sic de
    sinistra manum de illa terra trans scapulas suas jactare super
    illum quem proximiorem parentem habet.

    And afterwards he ought to enter into his house and to gather
    earth in his hand from its four corners, and after this he ought
    to stand on the threshold, looking back into the house, and so
    from his left hand throw across his shoulders some of that earth
    over _him_ [? those] whom he has nearest of kin.

    (3) Quod si jam pater et fratres solserunt, tunc super suos debet
    illa terra jactare, id est super tres de generatione matris et
    super tres de generatione patris qui proximiores sunt.

    But if father and brothers have already paid, then over his
    (relations) he ought to throw that earth, to wit over three
    [parentillæ] of the kindred of the mother and over three
    [parentillæ] of the kindred of the father who are nearest of kin.

    (4) Et sic postea in camisia, discinctus, discalcius, palo
    in manu, sepe sallire debet, ut pro medietate quantum de
    compositione diger est, aut quantum lex addicat, illi tres
    solvant, hoc est illi alii qui de paterno generatione veniunt
    facere debent.

    And likewise after that, in his shirt, ungirded, unshod, stake
    in hand, he ought to leap the fence, so that for that half those
    three shall pay whatever is wanting of the composition or what
    the law adjudges: that is, those others who come of the paternal
    kindred ought to do so.

    (5) Si vero de illis quicumque proximior fuerit ut non habeat
    unde integrum debitum salvat; quicumque de illis plus habet
    iterum super illum chrenecruda ille qui pauperior est jactet ut
    ille tota lege solvat.

    But if any very near kinsman shall be unable to pay the whole
    amount due, then whoever of them has more, on him again let the
    one who is poorer throw the chrenecruda, so that he may pay the
    whole amount due.

    (6) Quam si vero nec ipse habuerit unde tota persolvat, tunc
    illum qui homicidium fecit qui eum sub fidem habuit in mallo
    præsentare debent, et sic postea eum per quattuor mallos ad
    suam fidem tollant. Et si eum in compositione nullus ad fidem
    tullerunt, hoc est ut redimant de quo domino[105] persolvit, tunc
    de sua vita conponat.

    But if not even he shall have the wherewith to complete the
    required amount, then those who held him under oath ought to
    produce him who committed the homicide in the Mallus, and in
    the same way again afterwards four times in the Mallus hold him
    to his faith. And if no one take up his faith concerning the
    composition, _i.e._ to redeem him by payment, then let him make
    composition with his life.

Now, if we are here dealing with actual tribal custom, it is natural to
place some weight upon the picturesque incidents which testify to its
traditional origin. These picturesque incidents can hardly be other than
proofs of antiquity.

[Sidenote: The slayer and his co-swearers declare that he has given up
everything.]

Let us try, then, in spite of some confusion in the text, to make out the
probable meaning of the action described. Clause 1 makes it clear that
the first public step taken on the part of the slayer was to go to the
Mallus with twelve co-swearers, who with him pledge their faith that he
has given up everything, above ground or below it, towards the wergeld.
There must have been previous negotiations with the kinsmen of the slain,
and a stay of vengeance must have been conceded on the understanding that
if possible the wergeld will be paid. Having thus obtained legal security
for a time, the next stage in the proceeding is one between the slayer
and his kinsmen, without whose help he cannot pay the wergeld.

[Sidenote: The family gathering to arrange for payment of the rest of the
wergeld.]

The graphic details of the second clause seem to involve the presence of
a family gathering met within the enclosure containing the house of the
slayer, and, for anything we know, other houses of near relations. In
this enclosure the kindred have met to deal with a family catastrophe in
which they themselves are involved as well as the slayer. Even if they
have to find only their half of the wergeld, fifty head of cattle from
the family herd or their separate herds, as the case may be, must be to
them a matter of importance. Standing on the threshold of the house from
the four corners of which the slayer has gathered a handful of earth, he
throws it over the representatives of his paternal and maternal kindred.
He has done his part, and now the responsibility rests on them.

The vagueness and difficulty of the next clause result from a text which
has probably been tampered with. But with the help of Tit. LXII. and
the addition of Tit. CI., giving further details, it becomes at least
partly intelligible. The rule that the payment of wergeld was made by
the relatives in the same proportions as they would receive it, if
one of their kinsmen had been slain, is so general that we may fairly
assume that it was followed also by the Salic Franks. We have seen that
according to these clauses, if a father was killed, the sons took the
first half of the wergeld, and that the other half was divided between
three sets of _proximiores_--the three parentillæ or sets of relatives of
both paternal and maternal kindreds--in certain proportions. The slayer
and his sons should pay the first half, and his father and brothers
apparently help them to pay it. The other part ought to fall upon the
three parentillæ nearest of kin on both the paternal and maternal side.

So that Clause 3 becomes partly intelligible. ‘If the father and brothers
have already paid’ what the slayer could not pay of the first half, the
earth has to be thrown upon the three parentillæ nearest of kin of the
mother’s kindred and the three parentillæ nearest of kin of the father’s
kindred. These seem to be the ‘proximiores’ who should pay the other half.

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.

This is the best we can make of the famous title in the Lex Salica
regarding the payment of wergeld. But perhaps it is enough when taken
together with the clauses relating to its receipt to reveal the main
points of early Salic tribal custom. We may state them thus:--(1) That
the wergeld was divided into two halves, for one of which the slayer,
helped by his father and brothers, was responsible, and for the other
of which the three grades of kindred, extending apparently to the
descendants of great-great-grandparents, were responsible. (2) That if
the addition of Tit. CI. in this respect represented ancient tribal
custom, the payments, like the receipts, of the second half, were so
distributed that the nearer parentilla or group of relatives paid and
received, in relation to those behind them in kinship, in the proportion
of two thirds and one third. (3) That, if we may take the addition of
Tit. CI. as giving a share to the _widow_, and as an innovation, then
it may fairly be concluded that, under ancient Salic custom as under
Cymric custom, the widow originally took no share in the wergeld of her
husband, not being a blood relation to him.

[Sidenote: Position of the wife and her kindred.]

Further, as in the title _De chrenecruda_ there is no mention of any
share in the _payment_ of wergeld falling upon the wife of the murderer
or her family, we may conclude that however closely two families might
be united by a marriage, the wife, for the purpose of wergeld, still
belonged to her own kindred, and that marriage did not involve the two
families in mutual obligations for each other’s crimes of homicide, until
both paternal and maternal kindreds became sharers in payment and receipt
of wergelds in the case of the children of the marriage.

[Sidenote: What became of the slayer’s rights in the land.]

It is not needful to follow the speculations of various authorities as to
what became of the homestead and landed rights abandoned by the slayer
when he threw the chrenecruda upon his kindred and leaped, ungirt and
unshod, over the fence of the inclosure. It is begging the question to
call it his _Grundstück_ in the sense of a plot of land individually
owned. Whether it was so, or whether under Salic custom land was held by
family groups, as in the case of the Cymric gwely, is what the clause
_De chrenecruda_ does not tell us. The question may perhaps have easily
solved itself. The homestead and grazing rights, under tribal custom,
might probably simply merge and sink into the common rights of the
kindred, _i.e._ the neighbouring kinsmen would get the benefit of them.
Even if the slayer, now himself slain or an exile, had held a privileged
or official position as chief of his family, it would not follow that his
successor (having doubtless already a homestead of his own) would care
to succeed to the one left vacant. It is much more likely that tribal
superstition would leave the murderer’s homestead to decay. Even the
sons of a person, whose kindred had left him to perish by refusing the
necessary help in the payment of the wergeld of his victim, might well
refuse to ‘uncover’ the haunted hearth of their father, whilst if the
wergeld were paid the slayer would return to his old homestead. Finally
it must be remembered that in the tribal stage of land occupation the
value of land itself bore a very small proportion to the value of the
cattle upon it. And so the ‘Grundstück’ of the slayer would be as nothing
compared with the value of the hundred cows of a normal wergeld.


II. THE DIVISION OF CLASSES AS SHOWN BY THE AMOUNT OF THE WERGELD.

Turning now to the amount of the wergeld, something may be learned of the
division of classes under the Lex Salica.

Tit. XLI. fixes the amount of the wergeld of the typical freeman who is
described as ‘the Frank or the barbarian man who lives under the Lex
Salica.’

[Sidenote: The wergeld of the freeman living under Salic law 200 solidi.]

The amount, as throughout the Lex are all the payments, is stated in so
many denarii and so many solidi--8,000 denarii, _i.e._ 200 solidi. And
that the Frank or barbarian living under the Lex Salica was the typical
freeman is shown by the title _De debilitatibus_,[106] which fixes the
payment for the destruction of an eye, hand, or foot at 100 solidi. Half
the wergeld is the highest payment for eye, hand, and foot ever exacted
by the Continental laws, and 100 solidi certainly cannot apply to any
grade of persons with a lower wergeld than 200 solidi.

Tit. XLI. is as follows:--

    Si quis ingenuo franco aut barbarum, qui legem Salega vivit,
    occiderit, cui fuerit adprobatum viii. _M._ den. qui fac. sol.
    cc. culp. jud.

    If any one shall kill a freeman--a Frank or barbarian man who
    lives under the Lex Salica--let him whose guilt is proved be
    judged to be liable for viii. M. denarii, which make cc. solidi.

As this clause probably dates before the issue of Merovingian solidi of
diminished weight, the 200 solidi of the wergeld may be taken to have
been at the date of the law 200 gold solidi of Imperial standard.

So that the wergeld of the Frank or the free ‘barbarus living under the
Lex Salica’ originally, when paid in gold solidi, was neither more nor
less than the normal wergeld of a heavy gold mina.

[Sidenote: Officials had a triple wergeld.]

We learn from clause 2 of the same title that if the homicide was
aggravated by concealment of the corpse the composition was increased to
24,000 denarii or 600 solidi, and that the wergeld of a person ‘in truste
dominica’ was again 600 solidi. The Royal Official thus, as in several
other laws, had a triple wergeld.

Then lastly under the same title are three clauses describing the
wergelds of the ‘Romanus homo conviva Regis,’ as 300 solidi, of the
‘Romanus homo possessor’ as 100 solidi, and of the ‘Romanus tributarius’
in some texts 45, and in others 63, 70, and 120 solidi. In Codex 10 the
‘Romanus possessor’ is described as the man who in the pagus in which he
lives _res proprias possidet_.

The natural inference from these lesser wergelds is that the
Gallo-Romans were not ‘living under the Lex Salica,’ but under their
own Gallo-Roman law, with wergelds one half the amount of those of the
Frankish freemen.

Another of the 65 titles, viz. LIV., gives a further set of wergelds.
The wergeld of a _grafio_ is to be 600 solidi, that of a _sacebaro_ or
_ob-grafio_ who is a _puer regis_ 300 solidi, and that of a _sacebaro_
who is an _ingenuus_ 600 solidi. The _sacebaro_ was apparently the lowest
in rank of judicial officials except the _rachinburgus_, and the clause
adds that there ought not to be more than three sacebarones in each
malberg.

We may conclude from these statements that, the wergeld of the freeman
living under the Lex Salica being 200 gold solidi, the higher wergelds
up to 600 solidi were the threefold wergelds of public officials, _i.e._
threefold of the wergeld of the class to which they belonged. The wergeld
of the sacebaro who was a _puer regis_ was three times that of the
Romanus possessor. The sacebaro who was an _ingenuus_ had a wergeld three
times that of the ingenuus living under Salic law.

[Sidenote: Strangers in blood had only half wergelds _Romanus possessor_
100 solidi.]

We are thus brought into contact with an interesting question. These
laws, made after conquest and settlement on once Roman ground, ought to
be good evidence upon the tribal method of dealing with strangers in
blood: _i.e._, in this case, the Gallo-Roman conquered population. And
these clauses seem to show that half wergelds only were awarded to them
under Salic law.

M. Fustel de Coulanges held indeed the opinion that the term ‘Romanus’
of the laws was confined to the _freedman_ who had been emancipated
by process of Roman law.[107] But here the contrast seems to me to be
between Franks and barbarians ‘who live under Salic law’ on the one hand,
and the Gallo-Romans, whether freedmen or Roman possessores, living under
Roman law on the other hand. We shall come upon this question again when
the Ripuarian laws are examined, and need not dwell upon it here.

It is interesting, however, to notice that in Codex 2, Tit. XLI. the
Malberg gloss on the clause regarding the wergeld of the ‘_Romanus
tributarius_’ is ‘_uuala leodi_,’ which Kern (208) explains to mean the
wergeld of a _Wala_--the well-known name given by Teutonic people to
their Gallo-Roman and Romanised neighbours.


III. TRIBAL RULES OF SUCCESSION IN ‘TERRA SALICA.’

The question of the payment of wergeld is now generally admitted to be
distinct from that of inheritance in land.

The persons who receive and pay their share of the wergeld are those who
would have taken part directly or indirectly in the feud. They are not
confined to the expectant heirs of the slayer or the slain.[108]

If we are to learn anything directly upon the question of the method of
landholding under Salic custom it must be, not from the clauses relating
to the wergelds, but mainly from the Title LIX. _De Alodis_. It is the
next title to the _De chrenecruda_ and can hardly be passed by without
some attempt to recognise the bearing of its clauses upon the present
inquiry.

Its text is very variously rendered in the several manuscripts, and it
has been the subject of many interpretations. But if it may be legitimate
to approach it from a strictly tribal point of view, it will not be
difficult, I think, to suggest an interpretation consistent with what
we have learned of tribal custom from the Cymric example, and therefore
worthy at least of careful consideration.

[Sidenote: The title ‘De Alodis.’]

According to Codex 1 of Hessels and Kern the clauses are as follows:--

    (1) Si quis mortuus fuerit et filios non demiserit, si mater sua
    superfuerit ipsa in hereditatem succedat.

    If any one shall have died and not have left sons, if his mother
    shall have survived let her succeed to the inheritance.

    (2) Si mater non fuerit et fratrem aut sororem dimiserit, ipsi in
    hereditatem succedant.

    If the mother shall not be [surviving] and he shall have left
    brother or sister, let them succeed to the inheritance.

    (3) Tunc si ipsi non fuerint, soror matris in hereditatem
    succedat.

    Then, if they shall not be [surviving], let the sister of the
    mother succeed to the inheritance.

    (4) Et inde de illis generationibus quicunque proximior fuerit,
    ille in hereditatem succedat.

    And further concerning these generations, whichever shall be the
    nearer, let it succeed to the inheritance.

    (5) De terra vero nulla in muliere hereditas non pertinebit, sed
    ad virilem secum (leg. _sexum_) qui fratres fuerint tota terra
    perteneunt.

    But concerning _land_ no inheritance shall pertain to a woman,
    but to the male sex who shall be brothers let the whole land
    pertain.

The last clause in Codex 10 (Herold’s) is amplified as follows:

    (5) De terra vero Salica in mulierem nulla portio hæreditatis
    transit, sed hoc virilis sexus acqviret: hoc est, filii in ipsa
    hæreditate succedunt. Sed ubi inter _nepotes aut pronepotes_
    post longum tempus de alode terræ contentio suscitatur, non per
    stirpes sed per capita dividantur.

    Concerning, however, _terra Salica_, let no portion of the
    inheritance pass to a woman, but let the male sex acquire it:
    _i.e._ sons succeed to that inheritance. But where after a long
    time dispute may arise between _grandsons_ or _great-grandsons_
    concerning the alod of land, let the division be not _per
    stirpes_, but _per capita_.

[Sidenote: The ‘alod’ embraced the whole inheritance--land and cattle,
&c.]

Now, in the first place, what is meant by the term _alod_? In the Lex
Salica it occurs again in Tit. XCIX. _De rebus in alode patris_, which
relates to a dispute about the right to a certain thing, as to which the
decision turns upon the proof that can be given by the defendant that he
acquired the thing _in alode patris_. He has to bring three witnesses to
prove ‘_quod in alode patris hoc invenisset_,’ and three more witnesses
to prove ‘_qualiter pater suus res ipsas invenisset_,’ and if after
failure of proof and the interdiction of the law the thing be found in
his possession he is to be fined XXXV. solidi.

From this clause the inference must apparently be that the ‘_alod_ of
the father’ was the whole bundle of rights and possessions, personal as
well as real, which passed to descendants by inheritance. Indeed, it
seems to be generally admitted that in the title ‘de alodis’ all the
clauses except the last apply to personal property, and only the last to
realty.[109]

[Sidenote: It was an ancestral family inheritance.]

There are titles ‘de alodibus’ both in the Ripuarian Law[110] and in
that of the ‘Anglii and Werini.’[111] In both laws the ‘alod’ includes
personalty, and the latter defines the personalty as ‘_pecunia_ et
_mancipia_,’ thus reminding us that the personalty of the alod mainly
consisted of cattle and slaves. In the title ‘de alodibus’ of the
Ripuarian Law, the hereditary or ancestral character of the alod is
emphasised by the application to it of the words ‘hereditas _aviatica_’
There may, however, be some doubt whether the term _hereditas aviatica_
included the whole alod or only the land of the alod.

Regarding, therefore, the ‘alod’ as in some sense a bundle of rights and
property, let us try to consider these clauses with a fresh mind in the
light of what we have learned of Cymric tribal custom.

[Sidenote: The position of females and modifications made in their
favour.]

Under this custom, speaking broadly, as we have seen, daughters did not
share in the landed rights of the gwely. They received instead of landed
rights in the gwely their _gwaddol_ or portion, mostly, no doubt, in
cattle, and they were supposed with it to marry into another gwely, in
whose landed rights their sons were expected to share by paternity. If
women inherited landed rights at all, it was exceptionally in the case of
failure of male heirs, and then only so that their _sons_ might inherit.
The heiress in such a case, under Cymric as well as Greek tribal law, was
in quite an exceptional position, and, as we have seen in Beowulf, the
sister’s son might be called back into the mother’s family to prevent its
failure for want of heirs.[112] The exclusion of female successors from
terra Salica is therefore quite in accordance with tribal custom.

That the clauses as to personalty in the ‘de alodis ’ were modifications
of ancient Salic custom, made in favour of females, is rendered almost
certain by the position of the last clause as a saving clause, apparently
inserted with the object of protecting the rights of the sons in the land
of the alod, by preventing the application to it of the previous clauses.

[Sidenote: The land of the alod was _terra_.]

Codex 1 does not describe the land as _terra Salica_. It is content to
protect _land_ without qualification from the application of the previous
clauses, which, if applied to land, would transgress against tribal
custom. And the same may be said of Codices 3 and 4. But in the Codices 5
to 10 and in the ‘Lex emendata’ the words ‘terra Salica’ are used.

This is a point of importance, because it goes far to show that the whole
of the land of the alod was terra Salica, and protected by the saving
clause from participation by females. The use of the word _land_ alone
in Codex 1 forbids our thinking that part of the land of the alod was
terra Salica and the rest not terra Salica.[113] And this consideration
seems to show that to import into the clause any explanation of the
term derived from the word _Sala_, so as to confine its meaning to the
‘_Haus und Hofland_’ or the ‘_Väterliches Wohnhaus_,’ as Amira[114] and
Lamprecht[115] would do, would be misleading. The homestead of the chief
of a tribal family holding, on terra Salica, may, like the Roman villa,
have passed by various and even natural stages into the ‘_Herrengut_,’
or ‘_terra indominicata_’ of later manorial phraseology, and the term
_terra Salica_ may have clung, as it were, to it. But to reason backwards
to the Lex Salica from the instances of its later use, given by Guérard
in his sections on the subject, seems in this case, if I may venture
to say so, to be a reversal of the right order of inference. Lamprecht
carefully guards himself against the view that the _terra Salica_ of the
Lex was as yet a ‘Herrengut,’ and Guérard, in his careful sections on the
subject, admits three stages in the evolution of the _terra Salica_: (1)
‘l’enceinte dépendant de la maison du Germain;’ (2) ‘la terre du manse
seigneurial;’ (3) ‘simplement la terre possédée en propre, quelquefois
donnée en tenure.’[116]

This may in some sense fairly represent the line of evolution
subsequently followed, and I have long ago recognised the embryo manor in
the ‘Germania’ of Tacitus; but, for our present purpose, this does not
seem to help to an understanding of the term as used in the Lex Salica.

When all the Codices are taken together into account, _terra Salica_
seems to include the whole of the land, or landed rights, of the alod.
From the whole, and not only the chief homestead, the succession of
females is excluded, and it is the whole, and not the chief homestead
only, which is to be divided between the nepotes and pronepotes of the
deceased tribesman.

Approaching the Lex Salica, as we are doing, from a tribal point of view,
we seem to get upon quite other and simpler ground.

[Sidenote: _Terra Salica_ was land held under the rules of the Lex
Salica and subject ultimately to division _per capita_ between
great-grandchildren.]

The emphasis laid in the Lex Salica upon the distinction in social
status between persons ‘living under the Lex Salica’ and those living
under Roman law suggests that _land_ held under the Lex Salica was not
held under the same rules as those under which the ‘Romanus possessor’
held his ‘res propria.’ It would seem natural, then, that _terra Salica_
should be land held under Salic custom as opposed to land held under
Roman law. And if this be the simple rendering of the term _terra Salica_
in the Lex, then returning to the likeness of the Salic ‘alod’ to the
Cymric family holding some likeness might be expected in the rules of
succession to the land of the alod when compared with the Cymric rules of
succession to the ‘tir gweliauc’ or family land of the gwely.

We have seen that in the gwely the descendants of a common
great-grandfather were kept together as a family group till, after
internal divisions between brothers and then between cousins, there was
at last equal division of landed rights between second cousins, _i.e._
great-grandsons of the original head of the gwely. The fact of this right
of redivision at last between great-grandchildren was apparently what
held the family group together till the third generation.

The last clause of the ‘de alodis,’ even as it stands in Codex 1,
coincides with Cymric custom in so far as it excludes females from landed
rights and confines inheritance in the land of the alod in the first
instance to _sons_ ‘… _qui fratres fuerint_.’

And when at last later Codices call the land of the alod _terra Salica_,
and the addition in Codex 10 is taken into account, the evidence becomes
very strong indeed that under Salic custom the land of the alod or
terra Salica was held as a family holding, and, like the land of the
gwely, divisible, first between sons, then between grandsons, and at last
between great-grandsons.

    But when among grandsons or great-grandsons contention arises,
    after long time, concerning the alod of land, they [the lands of
    the alod] should be divided, not _per stirpes_, but _per capita_.

The later the date at which this sentence was added to the final clause
of the ‘de alodis,’ the stronger becomes the evidence of what ancient
Salic custom on this matter was.

[Sidenote: The final clause protects the family holding.]

Assuredly the object of these words is not to introduce a new principle.
They obviously describe ancient Salic custom in order to protect it.
And how could a division _per capita_ amongst great-grandsons take
place unless, as in the Cymric gwely, the holding of terra Salica had
during the whole period of the three generations been kept in some sense
together as a family holding?

It would be unwise to press analogies between Cymric and Salic tribal
custom too far, but I have before pointed out that a system of wergelds,
to which paternal and maternal relatives each individually contributed
their share, seems to imply an original solidarity of kindred, which
must, wherever it was fully in force, have been connected with a
corresponding solidarity in the occupation of land, together with its
complement, an individual ownership of cattle. And in the light of the
‘de alodis’ it does not seem unlikely that it may have been so under
ancient Salic custom.

[Sidenote: Distinction between land under Salic and land under Roman law.]

If the foregoing considerations be accepted, may we not recognise in
the term _terra Salica_, as at first used, a meaning analogous to that
which Professor Vinogradoff has recently so brilliantly given to the
Anglo-Saxon term ‘folc-land’?[117] In both cases surely it was natural
that there should be a term distinguishing land still held under the
rules of ancient tribal custom from land held under the Romanised rules
of individual landownership.

It is not necessary to do more than allude here to the various clauses of
the Lex Salica from which the existence of individual holdings is clearly
to be inferred. If, from this single mention of _terra Salica_ and its
ultimate division among great-grandsons _per capita_, the continued
existence of tribal or family holdings held still under Salic law may be
legitimately inferred, it is at least equally clear that the _Romanus
possessor_ who lived and held his possession as _res propria_ under Roman
law also existed. And if so the two classes of holders of land must often
have been neighbours. The vicini, ‘qui in villa consistunt,’ of the title
‘de migrantibus’ (XLV.) may some of them have been of the one class and
some of them of the other. The objection of a single person living under
Salic law to the interloper would have a new meaning and become very
natural if the conflict between the two systems were involved. And when
we have reminded ourselves of these facts the title _De eum qui se de
parentilla tollere vult_, to which allusion has already been made, which
enabled the tribesman, by the somewhat theatrical action of breaking
the four sticks of alder over his head, to cut himself loose from his
parentilla, takes its proper place as evidence of the temptation which
must have beset the young tribesman in close contact with Gallo-Roman
neighbours to free himself from what had come to be regarded as a
bondage, and to take an independent position as an individual under the
new order of things which was fast undermining the old.

       *       *       *       *       *

[Sidenote: Edict of Chilperic A.D. 561-584.]

Besides the title ‘de alodis’ there is another source of information
which must not be overlooked--viz. the Edict of Chilperic (A.D.
561-584).[118]

This edict appears to have been issued soon after the extension of the
Frankish boundary from the Loire to the Garonne, and specially to apply
to the newly conquered district.

[Sidenote: Admission of female succession to prevent Salic land from
passing from the family group to strangers.]

This conquest would necessarily extend the area within which Salic
settlements would be made among non-Salic neighbours, and multiply the
cases in which even a Salic Frank might find himself less securely
surrounded by kinsmen than of old. Under these altered circumstances
instances would become more and more frequent of the close neighbourhood
of tribesmen still holding under Salic custom and strangers living under
Roman laws of succession. The clauses of the edict seem accordingly to be
directly intended to prevent lapsed interests of Salic tribesmen in land
from falling to the vicini when there were brothers or female relations
surviving. In old times in purely Salic settlements lapsed interests
must usually have become merged in the general rights of the kindred,
the vicini being kinsmen. And no harm might come of it. Landed rights
would seldom have passed away from the kindred. But as the stranger
element increased in prominence the kindreds would more and more suffer
loss. Hence probably the extended rights given by the edict to female
relatives. It allows them to succeed in certain cases so as to prevent
the land, or, as we should rather say, the landed rights, from lapsing to
the vicini.

Clause 3 is as follows:--

    Simili modo placuit atque convenit, ut si quicumque vicinos
    habens aut filios aut filias post obitum suum superstitutus
    fuerit, quamdiu filii advixerint terra habeant, sicut et Lex
    Salica habet.

    Likewise we will and declare that if any one having _vicini_,
    or sons or daughters, shall be succeeded to after his death, so
    long as the sons live let them have the land as the Lex Salica
    provides.

So far evidently no change is made; old custom still holds good. But in
the rest of the clauses a modification is made evidently to meet altered
circumstances, and specially to shut out the _vicini_.

    Et si subito filii defuncti fuerint, filia simili modo accipiat
    terras ipsas, sicut et filii si vivi fuissent aut habuissent.
    Et si moritur, frater alter superstitutus fuerit, frater terras
    accipiat, _non vicini_. Et subito frater moriens frater non
    derelinquerit superstitem, tunc soror ad terra ipsa accedat
    possidenda.…

    And if suddenly the sons shall have died let the daughter receive
    those lands as the sons would have done had they been alive.
    And if he [a brother] should die and another brother should
    survive, let the brother receive those lands, _not the vicini_.
    And if suddenly the brother shall die not leaving a brother
    surviving, then let a sister succeed to the possession of that
    land.…

The remainder of the clause is very difficult to construe in the
imperfect state of the text, and it is not necessary to dwell upon it.
It seems to apply to newcomers (‘qui adveniunt’) and their rights _inter
se_.[119]

We have then in these clauses an allusion to ancient tribal custom as
well as to the change made necessary by the new circumstances.

[Sidenote: Analogy of Cymric custom.]

The implication is that under the rule of ancient custom, on a brother’s
death without children, _his brothers did not succeed to his land, but
the vicini_. Now the brother is to succeed, _not the vicini_.

At first sight this seems unnatural and unlikely. But it ceases to be
so if we may regard the alod of terra Salica as a family holding under
conditions somewhat like those of the gwely. For under Cymric custom
the brother did not succeed to the childless brother as his heir. The
co-inheritors, as far as second cousins, were his heirs. In other words
the lapsed share went to his _vicini_, but they were the kinsmen of his
own gwely.[120]

Nor did a brother succeed to his brother’s _da_, and the grazing rights
and homestead connected with it. He had received this _da_, as we have
seen, from his chief of kindred by ‘kin and descent,’ _i.e._ by tribal
right in his kindred, and therefore if he should die without children his
_da_ and everything he had by kin and descent went, not to his brothers,
but back to the kindred or the chief of kindred from whom he received it.

    If the son die after 14 years of age and leave no heir, his
    ‘argluyd’ is to possess all his _da_ and to be in place of a son
    to him and his house becomes a dead-house. (_Ven. Code_, i. p.
    203.)[121]

The lapse of landed rights in family holdings to the kindred was one
thing. Their passing out of the kindred to vicini who were strangers
would be quite another thing.

When after a time, let us say under cover of the title ‘de migrantibus’
or upon extended conquests, others, perhaps ‘Romani possessores,’ had
taken places in the villa side by side with the tribesmen living under
the customary rules of _terra Salica_, or when Salic Franks had settled
among strangers, the new element would have to be reckoned with.

In the clause ‘de migrantibus’ the protection of ancient Salic custom was
sought by the exclusion of strangers at the instance of a single objector
from terra Salica. In the Edict of Chilperic, on the other hand, the
presence of stranger vicini was taken for granted, and the protection of
terra Salica sought by extending the right of succession to brothers and
females, so that at least fewer cases might arise of lapsed inheritances
falling away from the kindred into the hands of the _vicini_ who might be
strangers.

The breaking up of tribal custom thus was not all at once, but by steps.
At first _terra Salica_ was limited to men, then female succession was
allowed, and lastly, in default of kindred, stranger vicini under
certain conditions were admitted to the lapsed inheritance.


IV. THE WERGELDS AND DIVISION OF CLASSES IN THE ‘LEX RIPUARIORUM.’

The customs of the Ripuarian Franks as to wergelds, as might be expected,
do not seem to have varied much from those of the Salic Franks. They were
probably neighbours in close contact with each other, and, judging from
the laws, the population of the district was a mixed one.

[Sidenote: Wergeld of freeman as under the Lex Salica, 200 gold solidi.
That of the official threefold.]

The wergeld of the Ripuarian ingenuus, like that of the Salic Frank
or barbarian living under the Lex Salica, was 200 gold solidi, and 12
co-swearers were required to deny the homicide (Tit. VII.).

Here again official position seems, as under the Salic law, to be
protected by a triple wergeld. The _grafio_ or _comes_, who was a fiscal
judge, had a wergeld of 600 solidi (Tit. LIII.). The payment for one _in
truste regis_ was also 600 solidi (Tit. XI.).

On the other hand, the wergeld of a ‘_homo regis_’ (Tit. IX.), like that
of the ‘_puer regis_’ of the Salic law, was only 100 solidi, and that
of the ‘man’ of the Church the same (Tit. X.), _i.e._ half that of the
Ripuarian ingenuus.

Consistently with this, the triple payment for killing a woman between
childbearing and 40, as also in the Salic Law, was 600 solidi, whilst the
wergeld of the ‘femina regia’ or ‘ecclesiastica’ was only 300 solidi.

There are apparently hardly any indications as to how or to whom the
wergelds were to be paid. There is only one reference to the _parentes_,
and that is not connected with the wergelds. In Tit. LXXXV. it is stated
that he who shall disinter a corpse and rob it shall pay 200 solidi and
be ‘expelled till he shall satisfy the _parentes_.’

The murderer alone seems to be responsible, unless indeed the few words
added to the clauses imposing the triple wergeld of 600 solidi upon the
murderer of a woman may be taken to be of general application. The words
are these:--

    ‘If the murderer shall be poor, so that he cannot pay at once,
    then let him pay _per tres decessiones filiorum_.’

Has it really come to this, that since the Edict of Childeric II.
came into force the parentes are released, and the descendants of the
murderer, for three generations, are to be in slavery till the wergeld is
paid? It may be so, for the penalty in default of payment of the wergeld
probably included his own slavery, which involved with it that of his
descendants.

[Sidenote: The fisc gradually takes the place of the kindred.]

The ancient tribal tradition that within the family there could be no
feud or wergeld, but exile only, was still apparently in force. In Title
LXIX. there is a clause which enacts that if any one shall slay one next
in kin (‘proximus sanguinis’) he shall suffer exile and all his goods
shall go to the fisc. This exile of the slayer of a near kinsman and
forfeiture of his goods to the fisc seems to be almost the only distinct
important survival of tribal feeling, apparently neither wergeld nor the
death of the slayer being admitted. But in this case the fisc was, as
usual, the gainer. Parricide under any system of criminal law would be a
capital crime. The pertinacity with which the custom that, being a crime
_within_ the kindred, there could be no feud and therefore no wergeld,
was adhered to in the midst of manifold changes in circumstances,
feeling, and law, is very remarkable.

There is not much else in the Ripuarian laws throwing light upon tribal
customs as regards the solidarity of the kindred. But there is a good
deal of interesting information upon the important subject of the
treatment of strangers in blood.

[Sidenote: Distinction between persons living under Salic law and those
living under Roman law who were treated as strangers in blood.]

We have seen that in the Lex Salica the definition of the _ingenuus_
with a wergeld of 200 solidi was the _Francus_ or _barbarus_ living
under Salic law. The ‘barbarus’ who lived under Salic law was no longer
a stranger; he had in fact become a Frank. As we should say, he had
been _naturalised_. Hence there was no inconsistency in the apparent
occasional indiscriminate use of the words ‘Francus’ and ‘ingenuus.’ They
meant the same thing. But there is nothing to show that the ordinary
Gallo-Roman was included under the term ‘_barbarus_ who lived under Salic
law.’ On the other hand, we find him living under the Roman law.

In considering the method of dealing with people of so mixed a population
as that of the Ripuarian district it is very important to recognise how,
under tribal custom, every man continued to live under the law under
which he was born, until by some legal process his nationality, so to
speak, was admitted to be changed. The Cymric example has shown us how
strictly the tribal blood and admission from outside into the tribe were
guarded. In such a mixed population as that of the Ripuarian district,
the strictness may have been somewhat relaxed, and the formalities of
admission less difficult. But there is evidence enough, I think (with
great deference to M. Fustel de Coulanges’ doubts on the subject), to
show that to some extent at any rate social distinctions were still
founded upon ‘difference of blood.’ At all events it is worth while to
examine the additional evidence afforded by some clauses in the Ripuarian
laws.

[Sidenote: Strangers of allied tribes have wergelds according to the
law of their birth, but if they cannot find compurgators must go to the
ordeal.]

In Tit. XXXI. it is stated that Franks, Burgundians, Alamanni, and
others, of whatever nation, living in the Ripuarian country, are to be
judged and dealt with, if guilty, according to the law of the place of
their birth, and not by the Ripuarian law, and it is significantly added
that (living away from their kinsmen as they often must be) if they
cannot find compurgators they must clear themselves by the ordeal of
‘fire or lot.’[122]

Here we come upon one of the strongest tests of tribal custom in its
insistence upon the necessity of a man being surrounded by a kindred
before he can be a fully recognised tribesman. Unless he be surrounded by
kinsmen who can swear for him, under tribal custom, he must have recourse
to the ordeal in case of any criminal charge.

There is a clause, not inconsistent, I think, with Tit. XXXI., which
seems to draw a clear distinction in favour of tribes more or less
nearly allied in blood with Franks, viz. the Burgundians, Alamanni,
Bavarians, Saxons, and Frisians, resident in the Ripuarian district, as
contrasted with the _Romanus_, who surely must be the Gallo-Roman.

In Title XXXVI. the following wergelds are stated, the slayer being a
Ripuarian in all cases:--

  A stranger Frank       200 solidi
  ”    ”     Burgundian  160   ”
  ”    ”     Romanus     100   ”
  ”    ”     Alamann  }
  ”    ”     Frisian  }  160   ”
  ”    ”     Bavarian }
  ”    ”     Saxon    }

[Sidenote: Wergeld of the _Romanus_ 100 solidi instead of 200 or 160
solidi.]

Thus the Roman stranger is placed in the lowest grade. His wergeld is
only 100 solidi--half that of the Ripuarian or Salic Frank--whilst those
tribes nearer in blood to the Frank are classed together with a wergeld
of 160 solidi, not much less than that of the Frank. Indeed, there is
reason to believe that these were the wergelds of the several tribes in
force in their own country according to their own laws.[123]

In this connection the view of M. Fustel de Coulanges, that the term
‘Romanus’ is confined to the libertus freed under Roman law, hardly
seems natural. The evidence seems to show that the man freed under the
formalities of Frankish law thenceforth lived under Salic law and became
a Frankish freeman with a freeman’s wergeld of 200 solidi, whilst the man
who became a freedman under process of Roman law thenceforth lived under
Roman law, and became a Roman freeman--a Romanus--with a wergeld of only
100 solidi. The inference that the difference in status was the result
of difference in blood is not altered by the fact that the social status
awarded to the Gallo-Roman was the same as that of the libertus in some
other laws.

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.’

Thus, as regards inheritance, the Frankish denarialis and the Roman
libertus seem to be treated alike, notwithstanding the difference of
wergeld.

Turning to another matter, the Ripuarian laws, being of later date than
the Lex Salica, made provision for the wergelds of the clergy.

[Sidenote: Wergelds of the clergy, and of their ‘men.’]

Tit. XXXVI. provided that the clergy should be compounded for according
to their birth, whether of the class of servi, or men of the king or of
the Church, or liti, or ingenui. If _ingenui_, they were to be compounded
for with 200 solidi. Then the wergelds of the higher clergy are stated as
follows:--

  Subdeacon  400 solidi
  Deacon     500   ”
  Priest     600   ”
  Bishop     900   ”

And there is a long clause _De Tabulariis_ (Tit. LVIII.) providing that
servi may be made under process of Roman law _tabularii_ of the Church,
so that they and their descendants shall be and remain servants of the
Church, and render the proper services of tabularii to the Church,
without any one having power further to enfranchise them. In case of
their death without children the Church is to be their heir. These appear
to be the ‘men of the Church’ whose wergeld was 100 solidi.

[Sidenote: The clause ‘De alodibus.’]

The Tit. LVI. _De alodibus_ is as follows:--

    Si quis absque liberis defunctus fuerit, si pater materque
    superstites fuerint in hereditatem succedant.

    If any one shall have died without children, if father and mother
    survive they shall succeed to the _hereditas_.

    Si pater materque non fuerint, frater et soror succedant.

    If there are not father and mother, brother and sister shall
    succeed.

    Si autem nec eos habuerit, tunc soror matris patrisque succedant.
    Et deinceps usque ad quintam genuculum, qui proximus fuerit,
    hereditatem succedat.

    But if he has not these either, then the sister of the mother and
    the sister of the father shall succeed. And further, up to the
    fifth knee, whoever is nearest shall succeed to the inheritance.

    Sed cum virilis sexus extiterit, femina in hereditatem aviaticam
    non succedat.

    But as long as the male sex survive, a woman shall not succeed to
    the _hereditas aviatica_.

All that need be remarked regarding this title is, first its close
resemblance to the clause ‘de alodis’ in the Lex Salica and the
confirmation given by the phrase ‘hereditas aviatica’ to the family
character of the ‘alod,’ and secondly that it seems to belong to the time
when female succession was favoured.

Whether the ‘hereditas aviatica’ included the whole alod or only the land
of the alod, on failure of male heirs, females were now to succeed.

[Sidenote: The traditional value of animals in payment of wergelds. The
wergeld of 200 solidi = 100 oxen.]

There remains only to be noticed the interesting addition to Tit. XXXVI.
which enacts that if any one ought to pay wergeld he should reckon,
_inter alia_:--

  The ox, horned, seeing, and sound, for         2 solidi
  The cow, horned, seeing, and sound, for [3 or] 1 solidus
  The horse, seeing and sound, for               6 solidi
  The mare, seeing and sound, for                3   ”

And this is followed by a final clause which is found only in some of the
manuscripts and which is probably an addition made under Charlemagne:--

    If payment shall be made in silver, let 12 denarii be paid for
    the solidus, _sicut antiquitus est constitutum_.

Thus our consideration of these laws ends with the fact that, before
the disturbance in the currency made by Charlemagne, the wergeld of the
Frankish freeman of 200 gold solidi or heavy gold mina was still, in the
Ripuarian district at all events, a normal wergeld of 100 oxen.


V. THE ALAMANNIC AND BAVARIAN LAWS.

These laws have an interest of their own, but only those points come
directly within the range of this inquiry which are likely to throw light
upon the interpretation of the Anglo-Saxon laws.

Beginning at once with the wergelds, there are two distinct statements.

[Sidenote: The wergelds of the early Alamannic ‘Pactus,’ and of the later
‘Lex Hlotharii.’]

According to the ‘Pactus,’ which is assigned to the sixth or seventh
century, and which is considered to represent customs of the Alamanni
before they were conquered by the Franks,[124] the wergelds were as
follows:--

  Baro de mino flidis   170 solidi (? 160)
  Medianus Alamannus    200   ”
  Primus Alamannus      240   ”

And for women:--

  Femina mino flidis    320   ”
  Mediana               400   ”
  Prima Alamanna        480   ”

These wergelds correspond very closely in some points with those of the
Burgundian laws and should be compared with them.[125]

The wergeld of women was double that of men of the same class. In the Lex
Salica and Lex Ripuariorum, women were paid for threefold.

In the Lex Hlotharii, s. LXIX., the wergelds are stated as follows:--

    If any freeman (‘liber’) kills a freeman, let him compound for
    him twice 80 solidi to his sons. If he does not leave sons nor
    has heirs let him pay 200 solidi.

    Women of theirs, moreover, always in double.

    The medius Alamannus, if he shall be killed, let 200 solidi be
    paid to the parentes.

It is not clear that there has been any change in the wergelds since the
date of the ‘Pactus.’

[Sidenote: The wergeld of 160 solidi accords with the statement in the
Ripuarian law.]

The wergeld of the medius Alamannus, 200 solidi, is the same as before.
That of the liber, 160 solidi, seems to be the same as that of the baro
de mino flidis in the ‘Pactus.’ It is also the wergeld of the Alamannus
according to the clause mentioning strangers in the Ripuarian law. The
use of the term ‘medius Alamannus’ seems to imply that there should be
a primus Alamannus as in the ‘Pactus.’ But what these two classes of
Alamanni with higher wergelds than that of the liber were does not appear.

This later statement of the wergelds seems also to contain a provision
which can, I think, only be explained by tribal custom. It occurs again
in clause XLVI., which enacts that the same payment has to be paid to the
parentes of a person sold out of the country beyond recall as if he had
been killed. This rule is the same in the Salic and Ripuarian codes. But
in this law a distinction is made between the case of a slain man leaving
an heir, and the case of his leaving no heir.

[Sidenote: Wergeld of 200 solidi if no heir of the person slain.]

    If he cannot recall him let him pay for him with a wergeld to the
    parentes. That is twice 80 solidi if he leave an heir. But if he
    does not leave an heir let him compound with 200 solidi.

The explanation must be that if the lost kinsman leaves no heir, the loss
is all the greater to the kindred. This looks like a survival of tribal
custom. The dread of a family dying out lay, as we have seen, at the
root of the widespread custom which brought in the sister’s son to fill
the vacant place when there was no one else to keep up the family. This
addition in the later statement, though omitted in the ‘Pactus,’ pointing
back as it appears to earlier custom, seems to show that the Lex as well
as the ‘Pactus’ may in the matter of wergeld be traced to Alamannic
rather than Frankish sources.

[Sidenote: Wergeld of women.]

In both the ‘Pactus’ and the Lex, as we have seen, the wergelds of women
were double those of men. The Bavarian law gives the reason of the rule
(IV. 29) and also the reason why sometimes an exception was made to the
rule.

    Whilst a woman is unable to defend herself by arms, let her
    receive a double composition; if, however, in the boldness of her
    heart, like a man, she chooses to fight, her composition shall
    not be double.

In titles XXIX. and XXX. of the Alamannic law it is enacted that if a man
be slain in the _curtis_ of the Dux a threefold wergeld must be paid, and
that if the messenger of the Dux be killed within the province his triple
wergeld must be paid.

[Sidenote: The freeman’s wergeld of 160 solidi under Bavarian law.]

In the Bavarian law the wergeld of the freeman is stated to be 160
solidi, thus:--

    If any one kill a free man (‘liberum hominem’) let there be paid
    to his parentes, if he have any, or if he have no parentes to the
    Dux or to him to whom he was commended whilst he lived, twice 80
    solidi: that is, 160 solidi. (Tit. IV. c. 28.)

There are no wergelds mentioned in the Bavarian law corresponding to
those of the _medius Alamannus_ and the _primus Alamannus_ of the
Alamannic laws.

[Sidenote: Higher wergelds of certain families.]

According to Tit. III. 1, there were certain families who were held in
double honour, and had double wergelds. The Agilolvinga had fourfold
wergelds, being the family from whom the Dux was chosen. The Dux himself
had a fourfold wergeld with one third added. If the life of any of his
parentes were taken the wergeld was, according to one manuscript, 640,
and according to another 600 solidi.

These wergelds of the Alamannic and Bavarian laws are not on all fours
with those of the Salic and Ripuarian Laws. But in both cases the
ordinary freeman’s wergeld is 160 solidi (unless there be no heir to
inherit), so that in both cases the wergelds correspond sufficiently
with the clause in the Ripuarian Laws which accords to them a wergeld of
160 solidi, after having before stated that strangers are to be judged
according to the laws under which they were born.

[Sidenote: Wergelds of the freedman and the servus.]

In the Bavarian law there is special mention of the freedman and the
servus, and it is worth while to dwell a moment on the position assigned
to them as compared with the ordinary freeman.

There are three titles headed as under:--

  Title IV. De _liberis_, quo modo componuntur.
    ”    V. De liberis qui per manum dimissi sunt liberi,
            quod _frilaz_ vocant.
    ”   VI. De _servis_, quo modo componuntur.

These clauses relate to injuries as well as to homicide. As regards all
minor injuries, the freedman is paid for at one half, and the servus at
one third, of the payment to the liber for the same injury.

[Sidenote: Payments for eye, hand, or foot one fourth the wergeld.]

But when the payment comes to be for the eye, hand, or foot, the
difference is, roughly speaking, doubled. The payment for the liber is
40 solidi, for the freedman 10 solidi, and for the servus 6 solidi (? 5
sol.). And these payments are seemingly intended to be one quarter of the
respective wergelds for homicide. We have seen that the wergeld of the
freeman was 160 solidi. These clauses state that the freedman’s wergeld
was 40 solidi, and that of the servus 20 solidi, and that in both these
cases the lord took the payment.

In Tit. IV. 30, _De peregrinis transeuntibus viam_, the passing
stranger’s death was to be paid for with 100 solidi to his parentes, or
in their absence to the fisc.

[Sidenote: Bavarian wergelds.]

The wergelds of the Bavarian laws may therefore be thus stated:--

  Ducal family (4 fold)     640 solidi
  Families next in honour   320   ”
  Liber                     160   ”
  Stranger                  100   ”
  Freedman                   40   ”
  Servus                     20   ”

And all these solidi were gold solidi of Imperial or Merovingian
standard, it does not matter much which.

[Sidenote: No wergeld within the family.]

The crime of homicide within the near family was dealt with in the
Alamannic law in conformity with ancient tribal custom. There was no
wergeld in such a case.

    If any man wilfully kills his father, uncle, brother, or maternal
    uncle (avunculus), or his brother’s son, or the son of his uncle
    or maternal uncle, or his mother, or his sister, let him know
    that he has acted against God, and not fulfilled brotherhood
    according to the command of God, and heavily sinned against God.
    And before all his parentes, let his goods be confiscated, and
    let nothing of his pertain any more to his heirs. Moreover, let
    him do penance according to the Canons. (Tit. XL.)

Once more in these laws the parricide (the fisc having taken his
property) goes free, but for the penance required by the Canons of the
Church.

[Sidenote: Wergelds of the clergy.]

As regards the wergelds of the clergy in the Alamannic law the Church
seems to claim triple penalties. The wergelds of the clergy are as
follows, according to the Lex Hlotharii (XI. to XVII.):--

  Bishop as that of the Dux or Rex.
  Priest, parochial                               600 solidi
  Deacon and monk                                 300   ”
  Other clerics like the rest of their parentes.
  Liber per cartam (the Ripuarian tabularius)      80   ”

      The free colonus of the Church as other Alamanni.

According to the Bavarian law (Tit. I. c. x.) a bishop’s death was to be
paid for by the weight in gold of a leaden tunic as long as himself, or
its value in cattle, slaves, land, or villas, if the slayer should have
them; and he and his wife and children are to be _in servitio_ to the
Church till the debt is paid.

The lower clergy and monks were to be paid for according to their birth
_double_; parochial priests threefold. (I. c. viii. and ix.)

[Sidenote: The wife’s inheritance goes back to her kindred if no children
born alive.]

In the _Liber secundus_ of the Alamannic law is an interesting clause
which throws some light upon the position of married women.

    (XCV.) If any woman who has a paternal inheritance of her own,
    after marriage and pregnancy, is delivered of a boy, and she
    herself dies in childbirth, and the child remains alive long
    enough, _i.e._ for an hour, or so that it can open its eyes and
    see the roof and four walls of the house, and afterwards dies,
    its maternal inheritance then belongs to its father.

This is natural, but it seems to show that if the child had been born
dead and the wife had died without children her paternal inheritance
would have gone back to her kindred and not to her husband.

In the absence of other evidence this is perhaps enough to show that in
accordance with tribal custom the kindred of the wife had not lost all
hold upon their kinswoman, and therefore that she by her marriage had not
passed altogether out of her own kindred.

[Sidenote: Traditional value of cattle stated in gold tremisses.]

Lastly, there are clauses in the same _Liber secundus_ which declare the
value of the solidus in equation with cattle.

    LXXX. Summus bovus 5 tremisses valet. Medianus 4 tremisses valet.
    Minor quod appreciatus fuerit.

    LXXVII. Illa mellissima vacca 4 tremisses liceat adpreciare. Illa
    alia sequenteriana solidum 1.

These clauses show that the solidi in which the wergelds were paid were
gold solidi of three tremisses.

In the Ripuarian laws the ox was equated with 2 gold solidi, _i.e._ 6
tremisses, so that we learned from the equation that the wergeld of the
Ripuarian liber, 200 solidi, was really a wergeld of 100 oxen. But the
above equations show that under Alamannic law the wergeld of the liber
was not so.

In the Alamannic laws the best ox was valued only at five tremisses
instead of six, so that the wergeld of 200 solidi of the medius Alamannus
was really a wergeld of 120 oxen; and the 160 solidi of the wergeld of
the _baro de mino flidis_ of the ‘Pactus,’ or simple ‘liber’ of the Lex
Hlotharii, was a wergeld of 96 oxen or 120 Alamannic ‘_sweetest cows_.’

Any one who has seen the magnificent fawn-coloured oxen by which waggons
are still drawn in the streets of St. Gall will appreciate what the
‘summus bovus’ of the Alamannic region may have been. Why it should have
been worth in gold less than the oxen of other lands does not appear.




[Illustration]




CHAPTER VII.

_TRIBAL CUSTOMS OF THE TRIBES CONQUERED BY CHARLEMAGNE._


I. THE EFFECT UPON WERGELDS OF THE NOVA MONETA.

[Sidenote: The _nova moneta_ of Charlemagne.]

We have reached a point in our inquiry at which it becomes necessary to
trouble the reader with further details concerning the changes in the
Frankish currency, made by Charlemagne.

We are about to examine the customs as regards wergelds of those tribes
which owed their laws, in the shape in which we have them, to the
conquests of Charlemagne. The alterations in the currency, made literally
whilst the laws were in course of construction, naturally left marks of
confusion in the texts relating to wergelds, and we have to thread our
way through them as best we can.

[Sidenote: A change from gold to silver.]

The change which we have to try to understand was in the first place a
change from a gold to a silver currency--_i.e._ from the gold currency of
Merovingian solidi and tremisses to the silver currency of Charlemagne’s
_nova moneta_.

There had been a certain amount of silver coinage in circulation before,
but the mass of the coinage had been hitherto gold, mostly in gold
tremisses.

In all the Frankish laws hitherto examined the monetary unit was the
gold solidus with its third--the tremissis. And the only question was
whether the solidi and tremisses were of Imperial or of Merovingian
standard--whether the solidus was the Merovingian solidus of 86·4
wheat-grains and the tremissis 28·8, or the Imperial solidus of 96
wheat-grains and the tremissis 32.

[Sidenote: Merovingian kings first used and then imitated Imperial coin.]

As regards the Lex Salica, originally the solidus was probably of the
Imperial standard, because the Merovingian kings at first in their
coinage copied the Imperial coins both in type and weight. And before
they issued a coinage of their own they made use of Imperial coins, both
gold and silver. Numismatists point in illustration of this to the fact
that in the tomb of Childeric at Tournay were found no Frankish coins,
but a large number of Roman coins, gold and silver, of dates from A.D.
408 to those of the contemporary Emperor Leo I. (457-474). And for proof
that these Roman coins were afterwards imitated by Merovingian princes
M. Maurice Prou had only to refer the student ‘to every page’ of his
catalogue of ‘Les Monnaies Mérovingiennes.’[126]

[Sidenote: The denarius of the Salic law first the scripulum and then the
Merovingian silver tremissis of 28·8 w.g.]

Now, if the gold solidus was at first of 96 wheat-grains, then the
denarius (one fortieth) would be 2·4 wheat-grains of gold, and at a ratio
of 1:10 the denarius would be the scripulum of 24 wheat-grains of silver,
which was called by early metrologists the ‘denarius Gallicus.’ Further,
at 1:12 the denarius would become the Merovingian silver tremissis of
28·8. So that probably the denarius of the Lex Salica may originally
have been the scripulum, and under later Merovingian kings their own
silver tremissis. Thus these silver tremisses had probably been regarded
as the denarius of the Lex Salica for a century or two at least before
Charlemagne’s changes.

Up to this time, therefore, there was apparently a distinct connection
between the reckoning and figures of the Lex Salica and the actual
Frankish coinage. The Merovingian coinage of gold and silver tremisses
of 28·8 wheat-grains was therefore, from this point of view, so to
speak, a tribal coinage for the Franks themselves, but not one adapted
for currency, over a world-wide Empire such as Charlemagne had in view,
and with which at last, when adopting the title of Emperor, he had
practically to deal.

The changes he made in the currency were intimately connected, not only
in time but in policy, with the extension of his kingdom and his ultimate
assumption of the Imperial title.

[Sidenote: Charlemagne, on conquest of Italy, raised the gold and silver
tremissis to the Imperial standard of 32 w.g.]

His raising of the weight of the Frankish gold tremissis and silver
denarius from the Merovingian standard of 28·8 to the Imperial standard
of 32 wheat-grains was probably the result of his conquest of Italy.
He seems to have arranged it with the Pope, for they issued silver
denarii of the higher standard with the impress of both their names upon
them.[127]

It was natural that he should wish his coinage to obtain currency
throughout his dominions, and this could not be expected if it was
continued at a lower standard than that of the Byzantine Emperor.

Not only in the currency, but also in other matters, extended empire
involved the breaking down of tribal peculiarities and greater
uniformity in legal provisions and practice.

[Sidenote: The Lex Salica still in force for Franks. And its family
holdings not yet extinct.]

To mention one instance suggested by our previous inquiry, we have
noticed how the extension of Frankish rule in Gaul from the Loire to the
Garonne increased the difficulties of maintaining two laws as to land.
Strangers under Roman law, as in the ‘de migrantibus,’ one by one were
settling among Franks holding alods or family holdings of terra Salica.
Extended conquests reversed the process, and in conquered provinces
immigrants living under Salic law became strangers amongst vicini living
under Roman, Burgundian, or Wisigothic law.

The family holdings of terra Salica must have now become the exception
and not the rule. This becomes evident in the provisions made for the
army.

In the Capitulare of A.D. 803,[128] _de exercitu promovendo_, it was
ordered that every free man (‘liber homo’) who, _de proprio suo_ or as a
benefice, had four _mansi vestiti_, that is mansi occupied by tenants,
should equip himself and attend ‘in hostem.’ And those not having so many
mansi were to club together so that for every four mansi a soldier should
be found. The possession of mansi had apparently become sufficiently
general to be taken as the typical form of landholding.

In A.D. 807[129] special arrangements were made for the case of the
recently conquered Frisians and Saxons.

If help should be needed in Spain, every five of the Saxons were to equip
a sixth. If the need arose nearer home, every two were to prepare a
third. Or if the need arose still closer at hand, all were to come. Of
the Frisians, counts and vassals and those who held benefices, all were
to come, and of those who were poorer every six were to equip a seventh.
There is no mention of mansi in the case of the Saxons and Frisians.

The Capitulare of A.D. 803 seems to show that in the longer settled
districts of the Empire the possession of so many mansi, _de proprio
suo_, was the prevalent form of landownership. So that, although the lex
Salica remained still in force, the number of Franks living under it
seems by this time to have borne a very small proportion to those living
under Roman and other laws.

Family holdings under the Lex Salica were, however, probably not quite
extinct. In the ‘Capitula generalia’ of A.D. 825[130] was inserted the
following clause providing specially for family holdings, which may
possibly have been holdings of _terra Salica_, though it is not so
directly stated.

    De fratribus namque qui simul in paterna seu materna hereditate
    communiter vivunt, nolentes substantiam illorum dividere, hac
    occasione, ut unus tantum eorum in hostem vadat, volumus ut si
    solus est vadat: si autem duo sunt similiter: si tres fuerint
    unus remaneat: et si ultra tres numerus fratrum creverit, unus
    semper propter domesticam curam adque rerum communium excolentiam
    remaneat. Si vero inter eos aliqua orta fuerit contentio, quis
    eorum expeditionum facere debeat, prohibemus ut nemo illorum
    remaneat. In ætate quoque illorum lex propria servetur. Similiter
    et in nepotibus eorum hæc conditio teneatur.

    Concerning brothers who together live in common in the paternal
    or maternal inheritance, unwilling to divide their substance,
    when occasion comes that one of them only should go _in hostem_,
    we will that if there be one only he should go, and if there be
    two the same: if there be three let one remain; and if the number
    of brothers grows to more than three, let one always remain on
    account of domestic care and to attend to their common concerns.
    But if among them any contention shall have arisen which of them
    ought to go on the expedition we prohibit that any one of them
    shall remain. During their lives also let the _lex propria_ be
    preserved. In the same way let this condition be kept to even
    among their grandsons.

When we reflect that the Franks living under the Lex Salica must have
thus sunk into a small minority, it becomes obvious that wider views must
of necessity have entered into the minds of Charlemagne and his advisers,
not only as regards land, but also as regards the currency.

[Sidenote: The currency of the Lex Salica only a local one.]

The currency of the Lex Salica, with its solidi of 40 denarii, was,
as has been said, after all a local one. And outside the old Frankish
boundary, in the Wisigothic region, as well as probably in Italy, the
Roman currency or local modifications of it apparently more or less
prevailed. Ecclesiastics, as we have seen, even Alcuin himself, still
used the terms of Roman currency in writing on monetary matters to their
friends outside the Empire.

[Sidenote: The Roman drachma or _argenteus_ of 72 w.g. the silver
denarius of the Empire.]

To them the denarius was still the Roman drachma of 72 wheat-grains of
silver, commonly called the _argenteus_, in contrast to the gold solidus
or _aureus_.

Gregory of Tours, when he has occasion to mention monetary payments,
speaks of _aurei_, _trientes_, and _argentei_. In one story he speaks of
_solidi_, _trientes_, and _argentei_.[131]

Further, in a supplement to the laws of the Wisigoths[132] is a statement
under the name of _Wamba Rex_ (A.D. 672-680), which apparently represents
the monetary system in vogue south of the Frankish boundary. It states
that the pound of gold equalled 72 gold solidi, so that the gold solidus
was not the Merovingian solidus but that of Constantine. It then states
that the ‘dragma’ of gold = ‘XII argentei.’ The argenteus being the
silver drachma, the ratio of gold to silver was 1:12.

To Isidore of Seville, from his Spanish standpoint, the silver drachma
was still the denarius.[133]

    Dragma octava pars unciæ est et _denarii_ pondus argenti, tribus
    constans scripulis.

    The drachma is the eighth part of an ounce, and the weight of the
    silver denarius containing three scripula.

    _Solidus_ apud Latinos alio nomine ‘sextula’ dicitur, quod his
    sex uncia compleatur; hunc, ut diximus, vulgus _aureum_ solidum
    vocat, cujus tertium partem ideo dixerunt tremissem.[133]

    The _solidus_ with the Romans is otherwise called the _sextula_
    because it is one sixth of the ounce; hence, as we have said, the
    vulgar call the _solidus_ the _aureus_, the third part of which
    is called the tremissis.

Thus the solidus was the typical gold unit or aureus, and the drachma was
the silver denarius or argenteus.

[Sidenote: Twelve drachmas of silver = at 1:10 the Merovingian gold
solidus.]

It is remarkable that at a ratio of 1:10 twelve Wisigothic or Roman
argentei or drachmas of silver equalled exactly in wheat-grains the
Merovingian gold solidus current on the Frankish side of the Garonne or
the Loire.[134]

It would seem, then, probable that traditionally and ‘according to
ancient custom’ outside the Frankish kingdom the Merovingian gold
solidus had been equated with twelve silver argentei or denarii of this
reckoning, whilst within Frankish limits 40 of the silver tremisses and
now of the pence of the nova moneta were reckoned as equal to the gold
solidus of the Lex Salica.

But even to the Frank the 40 denarii of the Lex Salica may have become
antiquated except for wergelds and other payments under its provisions.

[Sidenote: The silver solidus of 12 silver tremisses already in use in
accounts, as 1/20 of the pound of silver of 240 pence.]

The practice apparently had already grown up of reckoning 12 of the
silver tremisses as a solidus of silver, twenty of which went to the
pound of 240 pence, without, however, any pretence being made that this
solidus of twelve silver pence was to be reckoned as equal to the gold
solidus in making payments.

In the ‘Capitulare Liftinense’ of A.D. 743[135] a payment is enacted _de
unaquaque cassata solidus, id est 12 denarii_. It was necessary to make
this explanation.

It is not known how much earlier the practice of reckoning in pounds of
silver of 20 solidi of 12 denarii came into vogue, but it was long before
the issue of the nova moneta.

It might at first sight be thought that these twelve denarii may have
been twelve _argentei_ or drachmæ, but 240 drachmæ would make far more
than a pound. And by an edict of A.D. 765[136] Pippin had enacted that
out of a pound of silver not more than 22 solidi were to be made, one
of which was to go to the monetarius, and this clearly forbids the
supposition that the solidus could be of twelve drachmæ. The pound would
contain only eight such solidi.

Another Capitulare of A.D. 779[137] proves that the twelve denarii were
Merovingian denarii of 28·8 wheat-grains.[138]

The issue of the new denarii of 32 wheat-grains was apparently made
before A.D. 781, for in that year an edict was passed forbidding the
currency of the old denarii.[139]

[Sidenote: The pound of the _nova moneta_ was 240 pence of 32 w.g. = 7680
w.g.]

There was nothing very remarkable in this raising of the silver denarius
from 28·8 to 32 wheat-grains. It was merely adopting the Imperial
standard. But the extraordinary thing was that Charlemagne seems to have
thought that he could, by law, substitute the solidus of 12 of his silver
denarii for the _gold solidus_ hitherto in use. The gold currency was
going out and the silver currency was taking its place; but it was quite
another thing to make the solidus of 12 silver denarii of 32 wheat-grains
legal tender in the place of the gold solidus of the Lex Salica of 40
silver denarii of 28·8 wheat-grains. Yet this was what Charlemagne did,
though perhaps only by degrees.

[Sidenote: Charlemagne enacted that the silver solidus should be legal
tender for the gold solidus.]

The change was made under the pretence of the sanction of ancient
custom. In the addition made to Tit. XXXVI. of the Ripuarian law the
wording of the clause as to the payment of wergelds was ‘Quod si cum
argento solvere contigerit, pro solido duodecim denarios, _sicut
antiquitus est constitutum_.’ And this allusion to antiquity was repeated.

What was meant by this appeal to ancient custom it is not easy to see,
unless it might be the probably long-established equation already
mentioned between 12 Roman drachmas or argentei and the Merovingian
gold solidus. Very possibly this equation was older than that of the 40
denarii to the solidus of the Lex Salica.

In a series of remarkable articles contributed to the _Forschungen zur
Deutschen Geschichte_ of 1862,[140] Dr. Ad. Soetbeer endeavoured to show,
and with considerable force, that the introduction into the Lex Salica of
the round numbers of denarii--forty to the solidus--was of comparatively
late date; and if this hypothesis be correct, then it may be that
Charlemagne was appealing to an earlier Frankish custom of reckoning 12
silver denarii or drachmæ to the gold solidus. But even if it could be
so, obviously the denarii of 12 to the solidus of ancient custom cannot
have been the same denarii as those which afterwards were reckoned at 40
to the solidus.[141]

[Sidenote: This involved a ratio of 1:4.]

Economically speaking, the substitution of the solidus of 12 denarii
for the gold solidus, if they had been Roman drachmæ, would have been
reasonable and might have made no change in prices; but the substitution
of 12 of the new denarii of 32 wheat-grains for the forty denarii of 28·8
wheat-grains, involving a ratio between gold and silver of 1:4, could
only be justified by such a scarcity of silver as would prevent a rise in
prices. That it was not so justified became very soon apparent.

Following the order of date, the Capitulare of A.D. 785, ‘de partibus
Saxoniæ,’ shows that prices when quoted in the solidus of 12 pence
immediately rose. The ox, the traditional value of which was two gold
solidi, is reckoned as worth ten silver solidi. And M. Guérard has shown
from the various instances given in the ‘Polyptique d’Irminon’ that
on the estates of the Abbey of St. Germain-des-Prés the price of oxen
remained at an average of eight silver solidi long after the death of
Charlemagne.[142]

The Lex Salica continued in force with all its fines and wergelds stated
in gold solidi of 40 denarii. And a Capitulare of A.D. 801[143] contains
the following section which reveals the beginning of confusion:--

[Sidenote: Exception made as to Saxons and Frisians.]

    Ut omnis solutio atque compositio, que in lege Saliga continetur,
    inter Francos per duodecim denariorum solidos componatur, excepto
    hubi contentio contra Saxones et Frisones exorta fuit, ibi
    volumus ut 40 dinariorum quantitatem solidus habeat quem vel Saxo
    vel Frisio ad partem Salici Franci cum eo litigantis solvere
    debet.

    That every payment and composition which is contained in the lex
    Salica between Franks shall be paid by solidi of twelve pence,
    except that where a dispute has risen up against Saxons and
    Frisians we will that the solidus shall be of the amount of 40
    pence which either a Saxon or a Frisian ought to pay to a Salic
    Frank at law with him.

In A.D. 803 a clause was inserted in a Capitulare to the effect that
all debts to the King should be paid in solidi of 12 denarii ‘excepta
freda quæ in lege Saliga scripta sunt.’[144] This looks like a general
reservation of the fines and wergelds of the Lex Salica. But it does not
seem to have been so intended, or perhaps there was vacillation in the
Councils of the Emperor.

A Capitulare of A.D. 816[145] contained the following:--

    De omnibus debitis solvendis _sicut antiquitus fuit constitutum_
    per duodecim denarios solidus solvatur per totam Salicam legem,
    excepto leudis, si Saxo aut Friso Salicum occiderit, per 40
    dinarios solvant solidum. Infra Salicos vero ex utraque parte de
    omnibus debitis sicut diximus 12 denarii per solidum solvantur,
    sive de homicidiis sive de omnibus rebus.

    In the payment of all debts _according to ancient custom_ the
    solidi shall be paid by 12 denarii throughout Salic Law, except
    in the case of wergelds, if a Saxon or Frisian shall kill a Salic
    Frank let the solidus be paid by 40 denarii. Among Salic Franks,
    however, on both sides as to all debts, as we have said, 12 denarii
    shall be paid for the solidus, whether in the case of homicides or
    anything else.

As between Salic Franks, therefore, the solidus of 12 denarii was to be
legal tender in payment of wergelds and everything else.

[Sidenote: The _nova moneta_ enforced by penalties.]

This was all very well for debtors, but it was not so satisfactory to
creditors. The exception that, when a Frank was killed by a Saxon or a
Frisian, the wergeld was still to be paid in the solidus of 40 denarii,
was an admission that to receive it in solidi of 12 denarii would
have been a hardship. And as to the general public, the acceptance of
payment of debts in the denarii of the nova moneta had to be secured by
penalties. A clause was introduced into the Capitulare of A.D. 794[146]
according to which freemen refusing the new denarii were to be fined 15
solidi; whilst servi refusing them were to be publicly beaten naked at a
post.

[Sidenote: And it became permanent and was adopted by Offa and Alfred.]

The permanent result was very remarkable. The new currency was maintained
as legal tender in France, and the gold currency practically disappeared.
Charlemagne and his successors coined very few more gold solidi and
tremisses. King Offa and after him Alfred raised the English sceat to the
penny of 32 wheat-grains, probably in imitation of the nova moneta, and
Charlemagne’s pound of 240 of these pence--_i.e._ of 7680 wheat-grains of
silver--became generally recognised as the pound of monetary reckoning in
Western Europe.

[Sidenote: But the ratio between gold and silver went back to 1:12.]

So far Charlemagne triumphed. But in the meantime the artificial ratio
of 1:4, sought to be established between gold and silver, could not be
maintained. The pound of silver remained the standard in accounts, but
one of Charlemagne’s successors restored the Imperial ratio of 1:12 and
enacted that the pound of pure gold should no longer be sold at any other
price than 12 pounds of silver. The date of the edict by which this
restoration of the old ratio was secured was A.D. 864.[147]

These were the changes in the currency which took place during the
period of the formation of the Lex Frisionum and Lex Saxonum which we
have next to examine.

No wonder that they should have introduced confusion and alterations in
the text of the various clauses. And in order that we may be able to
feel our way through them it now only remains that we should realise the
actual difference between the amount of silver in the 40 denarii of the
solidus of the Lex Salica and the amount of silver in the 12 denarii of
the new solidus of the _nova moneta_ which had thenceforth to take its
place as legal tender in the payment of debts and wergelds.

In the first place, we know that the denarius of the nova moneta was a
silver penny of 32 wheat-grains, so that Charlemagne’s solidus of 12
silver pence contained 384 wheat-grains of silver.

[Sidenote: All debts could be paid in one third of the weight of silver
required before.]

In the next place, whatever the denarii of the Lex Salica may originally
have been, we know that the Merovingian silver denarii which had long
been current in France and in England were of the same weight as the
Merovingian gold tremisses, viz. 28·8 wheat-grains. Forty of these would
contain 1152 wheat-grains of silver--_i.e._ exactly three times as much
silver as the twelve denarii of the nova moneta.

So that if a wergeld were paid in silver it could now be paid in exactly
one third of the weight of silver hitherto required under the Salic law,
and so of every other debt.

Finally, not only was the ratio between gold and silver disturbed, but
also the ratio between money and cattle. And this was an important matter
in the payment of wergelds, for, as we have seen, the normal wergeld was
100 head of cattle. Obviously, wergelds would no longer be paid, as of
old, either in gold or in cattle, when they could be paid at a third of
the value in silver.

[Sidenote: In which currency are the wergelds of the Frisians and Saxons
recorded in the laws?]

In framing new laws representing the old customs of the newly conquered
Frisians and Saxons, the question would certainly arise whether the
wergelds were to be stated in the equivalent of their old customary value
in cattle, or reduced to one third of their old value by retaining the
traditional number of solidi as if they were still of the gold value.

We have seen that Frisians and Saxons were exceptionally dealt with; but
they had now become a part of the Empire, and, with the best intentions,
how was the framer of their laws to describe their ancient wergelds which
had hitherto been paid in gold solidi or in cattle? No one of the courses
open to him would be without its difficulties.

He might record the customary wergeld as still to be paid in gold solidi;
in which case the wergeld would be three times that of neighbouring
tribes who could now pay their wergelds in silver.

Or he might divide the amount of the ancient wergeld by three, so as to
reduce it to the lower level; in which case the number of animals in
which by long custom the wergeld had been paid would be worth three times
the wergeld payable in gold.

These would be the alternatives if the payment in gold were continued,
and never as yet in any of the laws had the wergelds been stated
otherwise than in gold.

There was only one other way open to the legislator, if he wished to keep
up the old customary values, viz. to translate the gold values at the old
ratio into the new silver solidi: that is, to treble the gold figures of
the ancient customary wergelds and make them payable in silver solidi.
This would probably be the best course if he wished to continue the old
relation of the wergelds to the animals in which they had hitherto been
mostly paid. But then it might be difficult to enforce the payment of
wergelds in silver in districts where the currency was still gold.

The legislator would, in any case, have to make up his mind whether to
lower the ancient wergelds of the newly conquered tribes to a third of
what they had been, or to keep up the value of the wergelds and the
number of cattle in which they had from time immemorial been paid.

The wergeld in the popular tribal mind was a thing so fixed and so sacred
that the makers of the Lex Frisionum and the Lex Saxonum were almost
certain to find themselves between the horns of a dilemma.


II. THE LEX FRISIONUM.

The tribes conquered by Charlemagne, whose laws we have now to examine,
differed from those whose laws and wergelds have been already considered
in one important particular. They were not conquering tribes which had
migrated into districts already under Roman law.

The conquests of Charlemagne over the Frisians and Saxons were conquests
of German tribes settled as of old in their own countries. They were,
moreover, conquests of still pagan tribes by Christian and partly
Romanised Franks.

Frankish conquest had extended far into Frisian and Westphalian territory
under the Merovingian kings. In Frisia Frankish influence was shown by
the existence of Merovingian mints at Duurstede.[148] In Westphalia, at
Soest and Paderborn, there were already Christian churches under the
jurisdiction of the Archbishop of Cologne. But neither the conquest nor
the conversion was completed till the time of Charlemagne.

[Sidenote: Was the wergeld 160 solidi?]

We have already learned from Titles XXXI. and XXXVI. of the Ripuarian law
that there were Frisians as well as Saxons, Burgundians, Alamanni, and
Bavarians resident in the Ripuarian district. Moreover, it was directly
stated that these immigrants were to be judged, not by Ripuarian law, but
by their own law and custom. Further, being often isolated and without
kindred near them to swear for them, if charged with crime they were to
clear themselves by the ordeal of fire or lot. And finally their wergeld
was stated to be 160 solidi, the inference being that this was the
wergeld of the Frisian freeman in his own country, by the law and custom
of which he was to be judged.

So that we approach the text of the Frisian law with this valuable
earlier knowledge in our possession. Two centuries before the date to
which the collection of Frisian laws is assigned, the Ripuarian law
bears witness that the Frisian wergeld was 160 solidi. Even if these
clauses were not a part of the original text and did not date back to the
sixth century,[149] the inference would be strong, and perhaps all the
stronger, that such must have been the wergeld at the later date of the
Frisian law. This earlier evidence is important, as, without the clue it
gives us and with nothing but the Frisian law to guide us, we might very
easily have been led to a wrong conclusion.

[Sidenote: The laws are of different dates.]

There seems to be no text of the Frisian laws earlier than that published
by Herold at Basle in 1557, and he does not state from whence he obtained
the text followed by him.[150]

Moreover, it is clear from internal evidence that the laws as we have
them are by no means of one single date. They form, in fact, a collection
of the customs of the three districts into which Frisia was divided, with
modifications and various additions made to the original collection at
different times.

At first sight there are inconsistencies in the statements of the
wergelds, and, as in other cases, the key to an understanding of them
is to be found, to some extent, in close attention to the currencies in
which the amounts of the compositions are stated.

It is not necessary to enter into any discussion of the various theories
suggested to meet the difficulties caused by the confusion of the
various currencies. The knowledge already obtained in the course of
this inquiry will, I think, if adhered to, suffice to clear the way
sufficiently for our purpose. Bearing in mind that the ‘Lex Frisionum’ as
we have it is a compilation with various additions, the inconsistencies
in the text will be no surprise provided that the reason for their
occurrence is apparent.

       *       *       *       *       *

[Sidenote: The three districts of Frisia and their local solidi.]

Frisia was divided into three divisions, and in certain glosses which
appear late in the laws[151] we are told that each division had a
separate solidus of its own.

(1) Between the _Laubach_ and _Weser_ (the Northern division) the
solidus is described as of two denarii, _i.e._ tremisses, of the nova
moneta.[152] This solidus, we shall find, was like that of the Saxon
tribes on the Eastern side of the Weser. The solidus, being of two
tremisses, contained sixty-four wheat-grains of gold.

(2) In the middle division, between the _Laubach_ and _Fli_, the solidus
is said to have been of three denarii, or tremisses, of the nova
moneta,[153] _i.e._ ninety-six wheat-grains of gold. This solidus is the
gold solidus of three tremisses after it had been raised by Charlemagne
to the standard of the Eastern Empire.

(3) In the Southern or Western divisions, between the _Fli_ and the
_Sincfal_, the solidus was 2½ denarii or tremisses _ad novam monetam_,
_i.e._ eighty wheat-grains of gold.[154]

But it seems to be clear that the statements of the wergelds and other
fines in earlier clauses of the laws are not made in these local solidi.

Thus in Title XVI. we are told that _Inter Laubachi et Sincfalam_, _i.e._
in both Middle and Southern divisions, in cases of homicide the payment
to the lord for breach of his peace (_de freda_) was thirty solidi,
‘_which solidus consists of three denarii_,’ although the local solidus
of the Southern division was that of 2½ tremisses. Sometimes the fines
are stated in solidi of three tremisses and sometimes in solidi of 20 to
the pound. There is no difficulty, after what we have seen in other laws,
in recognising in the solidus of three tremisses the _gold solidus_, and
in the solidus of 20 to the pound the _silver solidus_ of the Frankish
Empire.

Again, we at once recognise in the term _nova moneta_ the new standard of
Charlemagne, and in the term _veteres denarii_, which also occurs in the
laws, the gold or silver tremisses of the Merovingian currency before the
monetary reform of Charlemagne.

All this is exactly what might be expected in laws of somewhat different
dates, some of them perhaps going back to the time of the Merovingian
conquests, and others following upon the conquests of Charlemagne.

[Sidenote: Wergelds in gold solidi under Tit. I.]

Having thus so far cleared the way, we pass on to the amounts of the
wergelds as stated in the Lex.

Title I. is headed _Incipit lex Frisionum, et hæc est simpla compositio
de homicidiis_. And the wergelds of the three districts as stated in the
text and glosses may be tabulated as follows:--

    (1) _Between the Laubach and the Weser._[155]

      Nobilis 106 solidi and 2 denarii (or tremisses)
      Liber    53    ”    ”  1 denarius
      Litus    26½   ”    ”  ½ tremissis

    (2) _Between the Laubach and the Fli._[156]

      Nobilis 80 solidi Payable ⅔ to the heir of the slain and ⅓
                          to his ‘propinqui proximi.’
      Liber   53   ”    and  1 denarius (_i.e._ tremissis).
      Litus   27   ”    less 1 denarius (payable to his lord).
        ”      9   ”    less ⅓ denarius payable to the propinqui of
                          the slain.

    (3) _Between the Fli and the Sincfal._[157]

      Nobilis 100 solidi }
      Liber    50   ”    } of three denarii [_i.e._ tremisses]
      Litus    25   ”    }   _novæ monetæ_

These wergelds, with one exception, are alike throughout, so far as
regards the proportions between the three classes. The wergeld of the
liber is double that of the litus, and that of the nobilis double that
of the liber except in the Middle district, in which the wergeld of the
nobilis is only 1½ times that of the liber. In the same district there
is an additional payment to the _propinqui_ of the litus, his proper
wergeld, half of that of the liber, going to his lord.

It will be observed that in the last district only are the denarii
(_i.e._ tremisses) stated to be _novæ monetæ_. The inference is that in
the other two districts the tremisses, and therefore the solidi, were of
the lower Merovingian standard.

The district in which the tremisses were novæ monetæ was the Southern
district, first conquered and most thoroughly brought under Frankish
influence. The other two districts had apparently not yet so completely
come under it.

Accordingly, if we take the 106⅔ solidi of the nobilis of the Northern
district to be of Merovingian standard, the result is (106½ × 86·4
wheat-grains) 9216 wheat-grains, or exactly 16 Roman ounces, _i.e._ the
mina called, as we have seen, the Attic mina, which in Scandinavian usage
was divided into two gold marks.

The wergeld of the nobilis in the Middle district between the Laubach and
the Fli is stated to be 80 solidi instead of 106 solidi and two denarii.
But as the wergeld of the liber and litus are the same as those of the
Northern district, and therefore also presumably expressed in Merovingian
currency, the wergeld of 80 solidi of the nobilis, to be consistent,
should also be of the same Merovingian standard. And so it seems to have
been, for 80 Merovingian solidi (80 × 86·4 wheat-grains) make exactly
the Roman pound of 6912 wheat-grains or 12 Roman ounces, _i.e._ 1½ gold
marks.

In the wergelds of both Northern districts, therefore, an original
reckoning in gold marks of the Scandinavian system seems to have been
afterwards translated with exactness into an uneven amount and fractions
of solidi of the Merovingian standard.

[Sidenote: Wergelds in gold marks of the Baltic tribes.]

We may therefore state the wergelds of the two districts north of the
Zuider Zee in marks of the Scandinavian system thus:

  Nobilis  2 or 1½ gold marks.
  Liber    1         ”  mark.
  Litus    ½         ”  mark.

That these wergelds could be stated thus evenly in gold marks of the
Scandinavian system, whilst in Frankish solidi they could be stated only
in uneven numbers and fractions, is an interesting fact. It seems to show
that the original wergelds went back to a time when the trade intercourse
of Northern Frisia was connected mainly with Scandinavia, the Baltic, and
the Eastern trade route. In ‘Beowulf’ we found that Frisia was on the
horizon of the area included within the vision of the poet, the interest
of whose story lay chiefly in the Baltic.

[Sidenote: Only one third of 160 solidi.]

Now let us compare the wergeld of the liber in these districts, viz. 53
solidi and 1 tremissis of Merovingian currency, with what the statement
in the Ripuarian law would lead us to expect it to have been, viz. 160 of
the same solidi. It is exactly one third of what it ought to be. And the
inference from what we have learned in the last section would be that the
maker of the laws had divided the wergeld of ancient custom by three.

But for the moment we pass on to follow further the text of the Frisian
laws.

[Sidenote: Slave to be paid for at his value.]

In s. 11 of Tit. I. it is enacted that if any one, whether nobilis, liber
or litus, or servus, shall slay the servus of another, he shall compound
for the servus according to his value. And in s. 13 of the same title it
is stated that if a slave shall kill either a nobilis or liber or litus,
unknown to his lord, the lord of the slave shall swear that he did not
order it and pay twice the value of the slave. But if the lord cannot
deny that he ordered it he must pay for the homicide as if he had done it
with his own hand.

In Title IV. it is again enacted that if any one shall kill the slave of
another he shall be compounded for at the value put upon him by his lord.
And the same rule is made to apply to the case of a horse, ox, sheep,
goat, pig, and all domestic animals, except the dog: they are all to be
paid for at the owner’s estimate of value, or the alleged slayer must
clear himself with as many oaths as the judge may require.

[Sidenote: Value of the dog.]

The _dog_ is the only animal whose value is fixed by the law. And its
value at first sight was not the same in the several divisions.

                                    _Between Laubach   _Between Laubach
                                       and Sincfal._    and Weser._

  Dog for hawking                            4 sol.     8 solidi and 12
  Wolfhound accustomed to kill wolves        3 sol.
  Wolfhound which wounds but does not kill   2 sol.     8   ”
  Shepherd dog                               1 sol.     4   ”

The difference between the value of the dog in the Northern and the other
divisions can hardly be other than one of different currencies. Probably
the values for the Northern division may be silver values. It may,
however, be remarked in passing that the value of a dog in any case is
not lightly to be regarded as excessive. Its high value in the Frisian
laws, and also in other laws, shows how dependent the tribes surrounded
by forests were upon its help. In the Cymric Codes, as we have seen,
the herdsman’s dog was worth as much as an ox. In the Alamannic Laws
the shepherd dog which could kill a wolf was valued at 3 gold solidi,
or half as much again as the ‘best ox,’[158] and in the Lex Salica the
_canis pastoricalis_[159] was valued at 3 solidi. It is not difficult,
therefore, to understand how in Frisia the dog which could kill a wolf
should be worth 3 gold solidi, and the ordinary shepherd dog a gold
solidus.

We now come to a set of clauses in which the differences between the
three districts again appear, and in one of which, viz. again the
district between the Laubach and the Weser, we meet with values stated in
_silver solidi_ of 20 to the pound, _i.e._ of twelve pence.

[Sidenote: Methods of compurgation and ordeal.]

These clauses are interesting as illustrating Frisian methods of
compurgation, the ordeal of the lot and of hot water, and trial by
battle, all of which evidently belong to ancient tribal custom.

Title XIV. relates to the slaying of a man in a crowd, and describes the
means taken to ascertain whose deed it was. Each division had its own
custom. That of the _Middle district_ is first described:--

    The relative of the slain may summon seven men and charge each
    of them with the crime, and each is then put upon his oath with
    eleven co-swearers. Then they are to go to the church, and lots
    are to be cast upon the altar, or if the church be too far off
    the lots are to be cast upon relics.

    The lots are to be two pieces (tali) cut from a rod and called
    _teni_, on one only of which is the sign of the cross, the other
    being left blank. A clean cloth is to be spread over the altar
    or the relics, and then the priest (or if none, an innocent boy)
    ought to take one of the lots from the altar and pray God to show
    by some evident sign whether those seven who have sworn have
    sworn truly. If he takes up the lot marked with the cross, then
    those who have sworn were innocent. But if he takes up the other,
    then each one of the seven makes his own lot, from a rod, and
    marks his own sign on it, and so that both he and those standing
    by can recognise it. And the lots shall be wrapped up in clean
    cloth and laid upon the altar or relics, and the priest, if he be
    there, and if not the innocent boy, as above, shall take up each
    of them one by one from the altar, and shall ask him who knows
    it to be his own lot. And he whose lot happens to be last shall
    be compelled to pay the composition for the homicide. The rest,
    whose lots have already been taken up, are absolved.

    But if, in the first trial of the two lots, he takes up the one
    marked with the cross, the seven shall be innocent, as aforesaid,
    and he (the accuser), if he wishes, shall summon others for the
    same homicide, and whoever may be summoned ought to clear himself
    by complete oath with 11 co-swearers. And this shall be enough
    for the accuser, nor can he bring any one further to the lot.

This law prevailed between the Laubach and the Fli. But between the Fli
and the Sincfal for a case of this kind the following was the custom:--

    He who seeks composition for a homicide shall swear on saints’
    relics that he will not summon in this matter other than those
    who are suspected by him of the actual homicide: and then he
    shall summon for the homicide one or two, or even three or four,
    or however many there be who have wounded him who was slain. But
    though there were twenty, or even thirty, yet not more than seven
    are to be summoned, and each of those summoned shall swear with
    eleven others, and shall, after the oath has been tested by the
    judgment of God, show himself innocent by the (ordeal of) boiling
    water. He who swears first shall go to the ordeal first, and the
    rest in order. He who shall be found guilty in the ordeal shall
    pay the composition for the homicide, and to the king twice his
    own wergeld: the rest of his co-swearers shall be treated as
    above concerning perjurers.

Between the Laubach and the Weser the following was the custom:--

    He who seeks composition for homicide shall summon one man,
    declaring him to be the homicide of his kinsman, and saying
    that he ought to pay the ‘leud’ of the slain man. And if he, in
    reply, says that he is willing to purge himself on oath with his
    co-swearers, let him who has summoned him as homicide say that
    he wishes to summon him _in placito publico_, and let him so do.
    Let him summon him _in placito_ before judges, and let him who
    is summoned, if he cannot deny, show another defendant for the
    homicide of which he is accused. And this ought to be done thus:

    Let him produce the man he wishes, and let him swear “he is
    guilty of the homicide for which I am summoned,” holding him by
    the hem of his cloak. But if he wishes to deny this oath let him
    swear and go forth to wager of battle against him. And whichever
    of them in that battle is conquered (_et sibi concrediderit_)
    shall pay the ‘leud’ of the slain. But if he be slain his next
    heir shall pay the composition of the homicide. But in this
    battle it is lawful for either to pay a champion for himself if
    he can find one. If the hired champion is slain, let him who
    hired him pay sixty _solidi_ (_i.e._ _three libræ_) to the king,
    and over and above pay the ‘leud’ of the slain man.

[Sidenote: Wergelds stated in silver.]

The payment of _sixty solidi_--_i.e._ _three libræ_--clearly indicates
that the solidus of this clause was the Frankish silver solidus of
12_d._, of which 20 made the pound of silver. And this helps us to
understand that the compositions described in the immediately succeeding
and closely connected clause are also silver values. (Tit. XV.)

    This is the custom in the same region observed for the
    composition of wergeld:--

  (1) Composition of a _nobilis homo_    }
      ‘per denarios veteres’             } 11  lbs.

  (2) Composition of the _liber_ ‘per    }
      denarios veteres’                  }  5½ lbs.

  (3) Composition of a _litus_, of which }
      two thirds pertains to the         }  2  lbs. 9  oz.
      lord, one third to his kinsman     }

  (4) Composition of a _servus_             1  lb.  4½ oz.

There can, I think, be no doubt that the libræ of this clause are silver
pounds, and further, that as they are stated to be pounds ‘per denarios
veteres’ they must be pounds of Merovingian and not of Carlovingian
weight.

[Sidenote: These silver values equal to the gold ones at the Norse ratio
1:8.]

The pounds of this statement are therefore Roman pounds, of 240
Merovingian pence. Let us compare then the wergeld of the liber of 5½
such pounds of silver with the wergeld of the liber as stated in Tit.
I., which we saw was equivalent to one mark of gold. Following the
Scandinavian ratio of 1:8, the mark of 8 ounces of gold would equal 64
ounces of silver--_i.e._ 5⅛ pounds instead of 5½. The silver wergeld of
the nobilis would equal 10⅔ pounds instead of 11. The reckoning is rough,
but near enough to justify the conclusion that what was aimed at was the
nearest even pound of silver, and that therefore the wergeld of the one
statement is the equivalent of the wergeld of the other statement.

At the same time the fact of the reckoning being throughout in Roman,
_i.e._ Merovingian pounds, and not in those of Charlemagne’s _nova
moneta_, is instructive. It shows that this clause belongs to the period
during which the silver currency was pushing its way into Frisia. A
reckoning in silver had become necessary, although, as we happen to know,
the Frisians had a special liking for gold. They continued to coin gold
much longer than the Franks, and some years later than the date of the
laws. The Frisians were in close contact with the mint at Duurstede,
which was in fact the commercial metropolis of the North at the date of
the laws. The mint at Duurstede continued to coin gold coins till the
city was destroyed by the ravages of the Northmen in A.D. 837, and it was
from these Duurstede Frisian coins that the types were taken of the first
Scandinavian coinage.[160] In the meantime the close connection between
Frisia and the Scandinavian district is quite sufficient to account for
the Scandinavian ratio of 1:8 being the one used in the translation
of the gold wergeld of the district next to the Weser into a silver
equivalent.

[Sidenote: The wergelds in the local gold solidi.]

Let us now at last translate the wergelds of the three Frisian districts,
as stated in Tit. I. in gold solidi of three tremisses, back again into
what they must have been when reckoned in the local solidi. If originally
they were reckoned in these local solidi the result should be in even
numbers.

    _Between the Laubach and the Weser._

  Nobilis (9216 w.g.) = 144 solidi of 2 tremisses or 2 gold marks.
  Liber (4608 w.g.)   =  72   ”    or 1 gold mark.
  Litus (2304 w.g.)   =  36   ”    or ½ a gold mark.

    _Between the Laubach and the Fli._

  Nobilis (6912 w.g.) =  72 solidi of 3 tremisses or 1½ gold mark.
  Liber (4608 w.g.)   =  48   ”    or 1 gold mark.
  Litus (2304 w.g.)   =  24   ”    or ½ a gold mark.

    _Between the Fli and the Sincfal._

  Nobilis (9600 w.g.) = 120 solidi of 2½ tremisses.
  Liber (4800 w.g.)   =  60   ”             ”
  Litus (2400 w.g.)   =  30   ”             ”

It is interesting to observe that the wergelds of the two districts
north of the Zuider Zee, when translated back again into local solidi,
turn out to have been in even numbers of such solidi, as well as in even
gold marks of the Scandinavian district, whilst those of the Southern
district, most under Frankish influence, make even numbers of the local
solidus but not of the mark.

When these Frisian wergelds in local solidi are regarded in connection
with the fact that the wergelds on the east or Saxon side of the Weser
were, as we shall find, also paid in a local solidus, and that this Saxon
local solidus, like the solidi of the North Frisian district, was of two
tremisses, and further that it represented the value of the one-year-old
bullock, we are led to conjecture that the Frisian local solidi also
may have represented the animal in which the wergelds were originally
reckoned and paid. And this may perhaps be confirmed by the fact that,
down to comparatively modern times, the East Frisian silver currency
consisted chiefly of the _gulden_ and its one-tenth the _schaap_.
Possibly the _gulden_ of this silver currency may point back to a time
when the ‘gold piece’ was reckoned of the value of ten sheep.[161] But
this is conjecture only. The dog, as we have seen, was the only animal
whose value was fixed in the laws.

[Sidenote: Why only one third of 160 solidi?]

The fact that the gold and the silver values of the wergelds of titles I.
and XV. of the lex seem to correspond leads up once more to the difficult
question why the wergeld of the liber should be exactly one third of what
the Ripuarian law apparently declared it to have been.

Richthofen, in his preface and notes to the Frisian laws in the edition
of Pertz, points out that in later additions to the laws there is a
curious duplication and triplication of figures which has to be accounted
for. The facts seem to be these:--

In Tit. XXII. _De Dolg_, relating to the Middle district and forming part
of the more ancient law, the fines for wounding are first given for the
_liber_, and then an explanation is made in the Epilogue that those for
the _nobilis_ were one third higher and those for the _litus_ one half
less. The composition for the eye is stated to be half the wergeld.

[Sidenote: Fines and perhaps wergelds trebled afterwards.]

Then, under the heading _Additio Sapientium_, Tit. II., the amount for
the hand is stated to be ‘25 solidi et 5 denarii.’ And after the mention
of the amounts for the several fingers are the words, ‘_Hoc totum in
triplo componantur_.’ The payments for hand and eye are generally alike,
and three times 25 solidi and 5 denarii = 80 solidi, _i.e._ half a
wergeld of 160 solidi.

Immediately following these words Tit. III. begins with the statement
that the foot entirely cut off is to be compounded for as the hand,
_i.e._ by 53 solidi and 1 tremissis, being double the previous amount.
The payment for the eye put out is ‘ter quadraginta solidi,’ _i.e._
120 solidi. Then whilst in the title _De Dolg_ the ear is valued at 12
solidi, in Tit. III. of the Additio it is valued at ‘_ter_ duodecim
solidi.’ Again, according to the title _De Dolg_, if both testicles were
destroyed, the whole wergeld was to be paid: and in Title III. of the
Additio the fine has become _ter_ 53 solidi and 1 tremissis, three times
the wergeld of the liber in Tit. I.

It is not needful to pursue the comparison further than to point out that
Richthofen had some reason at any rate to form the opinion that in the
additions to the law made, as he thinks, after A.D. 785 and probably
about A.D. 802, the _wergelds_ were trebled, as well as some of the
payments for wounds; and that the inference from the Ripuarian laws that
the Frisian wergeld was 160 solidi was therefore correct.[162]

So far Richthofen’s contention is, I think, a correct one.

But what was the reason of this trebling of the wergeld in the additions
to the laws?

[Sidenote: The wergeld of ‘liber’ was probably 160 solidi.]

Was it that the ancient wergelds were originally one third of those of
neighbouring tribes and trebled at some auspicious moment to make them
correspond with others; or have we not rather to do with the results of
that confusion in the currency which was caused by the endeavour to force
into use the silver solidus of 12 pence as the equivalent of the gold
solidus?

This conjecture standing by itself on the evidence of these laws alone
would be too hazardous to build upon, and it is not necessary to consider
it further in this place. The matter of chief importance is that, all
things considered, there seems to be fairly sufficient evidence that the
wergelds of Tit. I. represent the ancient wergelds divided by three, and
that accordingly we may take the wergeld of the liber in the two Northern
districts of Frisia to have been three gold marks or 160 Merovingian
gold solidi,[163] as stated in the Ripuarian laws.

[Sidenote: Division of wergeld among grades of kindred.]

With regard to the distribution or division of the wergeld amongst the
relations of the person slain, the laws mention only the custom of the
Middle districts, according to which two thirds of the wergeld went to
the heir of the slain and one third ‘ad propinquos proximos.’ They give
no information as to how the ‘propinqui proximi’ divided their third
amongst themselves, or to what grade of kinship this class of relations
extended.

Happily, however, Dr. Brunner, in his informing essay on ‘Sippe und
Wergeld’ already quoted, has been able to supplement the meagre
information given by the laws as to wergelds with further details gained
from later local sources.

In his section (p. 25) on ‘Die Friesen zwischen Zuidersee und Weser,’ he
gives an illustration of the way in which under later custom the payment
of the wergeld was divided amongst the relations of the slain. He states
that the North Frisian _tale_, _i.e._ the third share which the kindred
had to pay, was known as the _mentele_ or _meitele_ (magzahl).

[Sidenote: Later example.]

In a legal document of ‘Westerlauwersches Friesland’ the _mentele_ of
the kindred is described as 4 lbs. 5 oz. 6⅔_d._, and the _erbsühne_, or
two thirds to be paid by the heirs, as 8 lbs. 10 oz. 13⅓ pfennig. The
pound, we are told, is 12 oz. of 20_d._, so that here we have clearly
Frankish currency and _silver_. The third and the two thirds together
make a whole wergeld of 13 lbs. 4 oz. of silver. Now in the first place
if, as we probably should do, we were to consider this wergeld to be
stated in pounds and ounces of Charlemagne’s nova moneta, it would be not
very far from treble the amount of the wergeld of the liber in Titles I.
and XV. of the laws. And this, so far as it goes, confirms the Ripuarian
statement that the ancient Frisian wergeld was one of 160 solidi.[164]

Let us now see how the third falling on the kindred was divided.

The one third of the _mentele_ of the kindred (moeg) was divided thus:--

                                                             lbs. oz. p.
  (1) The _brother_, or if none, the _brother’s son_, or if
      none, the sister’s son                                   0  12  0

  (2) The _uncle_ on the father’s side (fedria)                0   9  0
      The _uncle_ on the mother’s side (eem)                   0   4  0
      Or in default of these the _cousins_ of the slain,
      or in default the cousins of the uncles.

  (3) The _eftersusterbern_ or cousins descendants of
      grandparents:
      (_a_) On the side of the father’s grandfather            0   3  8
      (_b_) On the side of the father’s grandmother            0   3  8
      (_c_) On the side of the mother’s grandfather            0   2  5
      (_d_) On the side of the mother’s grandmother            0   2  5

  (4) The rest falls on the cousins--the eight stems which
      descend from the great grandparents
      The four stems from father’s side                        0   7 12
           ”       ”      mother’s side                        0   7  8
                                                               --------
                                                               4   3  6

This interesting illustration of the payment of a Frisian wergeld, though
of later date than the laws, confirms the statement in the laws that
in its division the immediate heirs of the slain took two thirds and
the _propinqui proximi_ one third. It shows that at a later date the
immediate ‘erbsühne’ was two-thirds, and the share of the kindred one
third. And it adds the important point that the kindred who paid, and by
inference shared in the receipt of the one third, were confined to the
descendants of the great-grandparents, both paternal and maternal, of the
slayer or of the slain.


III. THE LEX SAXONUM.

[Sidenote: Divisions of the Saxon tribes.]

In turning from the Frisian to the Saxon district, we have again to
notice that, as in the Frisian instance, so in the Saxon, the territory
over which the law had force was divided into several districts belonging
to allied but separate tribes with their own peculiar customs.

The Westfali and the Ostfali and the Angrarii were the chief tribes with
which the Lex Saxonum and the Capitularies had to deal. The ‘Saxones
Bortrenses’ and ‘Septentrionales’ are also mentioned in one of the
Capitularies, but these do not appear to be of much importance to our
inquiry.

The stubborn resistance of the Saxon tribes to the Frankish conquest, and
the sanguinary character of the Saxon wars of Charlemagne, may well have
made a cleaner sweep of local custom from these districts than had taken
place in others. And this may explain to some extent the disappointing
silence of the Lex Saxonum upon questions of custom which might otherwise
have been expected to afford useful and interesting points for comparison
with the Kentish and Anglo-Saxon Laws. Moreover, the wergelds as stated
in the text are, like those of the Frisian Laws at first sight so
misleading that only a very careful regard to the changes in Frankish
currency can make their amounts intelligible, and bring them into line
with those of neighbouring tribes.

[Sidenote: Statement of wergelds of _nobilis_ and _litus_.]

Happily, in approaching the wergelds of the Lex Saxonum, we can do so, as
in the case of the Frisian wergelds, with the statement of the Ripuarian
Law in mind, that the Saxon as well as the Frisian wergeld was 160
solidi. And it is well that we can do so, for otherwise we might very
easily lose our way.

The Lex Saxonum begins with a title ‘de vulneribus’ which describes the
payments to be made for the different wounds inflicted upon a _nobilis_.
Title II., ‘de homicidiis,’ next follows with a statement of the wergelds.

    Qui nobilem occiderit, 1440 solidos conponat; ruoda dicitur apud
    Saxones 120 solidi et in premium 120 solidi.…

    Let him who shall kill a _nobilis_ make composition 1440 solidi;
    the Saxons call ‘ruoda’ 120 solidi, and ‘in premium’ 120 solidi.…

    Litus occisus 120 solidis componatur.…

    The _litus_ killed is compounded for with 120 solidi.

Much controversy has arisen upon the two extra payments ‘ruoda’ and ‘in
premium;’ but whatever they may have been, they need not surprise us.
Though we may not be able to identify them with the ‘halsfang’ or the
‘wites’ and ‘bots’ of Anglo-Saxon laws, they were probably payments of
something of the same kind, additional to the wergeld.

It is more important to remark the absence altogether of any mention of
the ordinary ‘liber’ or ‘ingenuus’ between the nobilis and the litus,
especially as in the title on theft the three classes are all mentioned.

According to Clause 2 of the Tit. II. of the Lex, married women had the
same wergelds as men. Those unmarried were to be paid for with a double
wergeld. And by Clause 4 a servus slain by a nobilis was to be paid for
with 36 solidi.

By Clause 5:

    Litus si per jussum vel consilium domini sui hominem occiderit,
    ut puta nobilem, dominus compositionem persolvat vel faidam
    portet. Si autem absque conscientia domini hoc fecerit,
    dimittatur a domino, et vindicetur in illo et aliis septem
    consanguineis ejus a propinquis occisi, et dominus liti se in hoc
    conscium non esse cum undecim juret.

    If a litus shall slay a man, _e.g._ a _nobilis_, by the order or
    counsel of his lord, the lord shall pay the composition or bear
    the feud. But if the litus shall do this without the knowledge
    of the lord, he shall be dismissed by the lord and avengement
    made on himself and seven others of his blood by the near kindred
    of the slain, and the lord of the litus shall swear with eleven
    [compurgators] that he had no knowledge of the deed.

[Sidenote: Value of the ox 2 solidi.]

Title IV. on Theft is interesting as, besides mentioning the _liber_, it
fixes the value of the four-year-old ox at the date of the clause at 2
solidi, _i.e._ the old ox-unit.

    VI. He who by _night_ steals a four-year-old ox, which is worth 2
    solidi, shall be punished by his head.

Theft of bees from within another’s fence or of things to the value of
two solidi by night from a house, or of things of any kind, day or night,
of the value of _three_ solidi, was to be capitally punished. Theft of
things of less value than three solidi was to be compounded for ninefold,
and _pro freda_ the nobilis was to pay 12, the liber 6, and the litus 4
(? 3) solidi.

In Clause 6 of Title II. is the following:--

    Si mordum totum quis fecerit, componatur primo in simplo juxta
    conditionem suam; cujus multæ pars tertia a proximis ejus qui
    facinus perpetravit componenda est, duæ vero partes ab illo; et
    insuper octies ab eo componatur, et ille ac filii ejus soli sint
    faidosi.

    If any one commit murder with aggravation of concealment he (the
    murderer) makes composition first _in simplo_ according to his
    condition, of which payment one-third part is to be paid by the
    next of kin of him who has perpetrated the crime, and two-thirds
    by himself; and besides eight times (the wergeld) is to be paid
    by him, and he and his children alone shall be in feud.

[Sidenote: Murderer pays two thirds and his kindred one third of wergeld,
as in Frisian law.]

This clause is valuable as showing that, as in the customs of Frisia
and most other Low German tribes, the murderer paid two thirds and his
kinsmen one third of the wergeld in ordinary cases.

The murderer and his children alone had to pay the eight parts added for
the aggravation of the crime by concealment.

That the Lex Saxonum is in some things at least a record of local custom
is shown by the fact that, as in Frisia, varieties were recognised in the
several divisions of the country.

[Sidenote: Local customs as to dower of wife.]

The payment for taking a wife, in all the divisions, was 300 solidi (Tit.
VI.), to be paid to her parentes if with their consent. If with _her_
consent, but not with theirs, the payment was doubled. If she were seized
without the consent of either, she must be restored to her ‘parentes’
with 300 solidi to them and 240 to her. Tit. VIII., however, shows that
with regard to dower the customs of the several districts varied. Among
the Ostfali and the Angrarii, if a wife bore children, she, the mother,
retained the dower received on marriage for her life and left it to her
children. Should she survive her children _her_ next heirs received it.
If there were no children, the rule was _dos ad dantem_, _i.e._ it went
to the husband, or, if he were not alive, to _his_ heirs. Amongst the
Westfali, after a woman had borne children she kept the dower till her
death. After her death, _dos ad dantem_, it went to the husband or the
husband’s next heirs. Further, Tit. IX. states that as regards what had
been acquired by man and wife together, amongst the Westfali the wife
received half, but amongst the Ostfali and Angrarii nothing: she had to
be content with her dower.

The final clause of the laws, which describes the currency in which the
payments were made, is important. According to the best manuscripts it
was as follows:[165]--

[Sidenote: Wergelds to be paid in solidi of two tremisses, _i.e._, value
of the bullock.]

    _Tit._ XVIII. _De Solidis._

    (1) Solidus est duplex; unus habet duos tremisses, quod est bos
    anniculus duodecim mensium: vel ovis cum agno.

    (1) The solidus is of two kinds; one has two tremisses, which is
    the one-year-old bullock, or a sheep with lamb.

    (2) Alter solidus tres tremisses id est, bos 16 mensium.

    (2) The other solidus, three tremisses: that is, the ox of
    sixteen months.

    (3) Majori solido aliæ compositiones, minori homicidia
    componuntur.

    (3) Other compositions are compounded for with the greater
    solidus, homicide with the lesser one.

This was originally the final clause. But the following additions were
afterwards made. In the Corvey Code:--

    Quadrinis bos duo solidi. Duo boves quibus arari potest 5 solidi.
    Vacca cum vitulo solidi duo et semis. Vitulus anniculus sol. 1.
    Ovis cum agno et anniculus agnus, si super adjunctus, sol. 1.

    The four-year-old ox, two solidi. Two oxen by which one can
    plough five solidi. Cow, with calf, two-and-a-half solidi.
    Year-old calf, one solidus. Sheep with lamb, if a year-old lamb
    be added, one solidus.

And in the Codex Lindenbrogius:[166]--

    Westfalaiorum et Angrariorum et Ostfalaiorum solidus est secales
    sceffila 30, ordei 40, avenæ 60; apud utrosque: duo sicle mellis
    solidus; quadrimus bos duo solidi: duo boves quibus arari potest
    quinque sol., bos bonus tres solidi; vacca cum vitulo solidi duo
    et semis.

    The solidus of the Westfali and Angrarii and Ostfali is 30
    sceffila of rye, 40 of barley, 60 of oats; with both: two siclæ
    of honey a solidus; four-year-old ox two solidi; two oxen, with
    which one can plough, five solidi; good ox, three solidi; cow
    with calf, two-and-a-half solidi.

According to the original final clause, if it had been followed in the
text of the Lex Saxonum the wergelds ought to have been stated in gold
solidi of two tremisses, representing the bullock, or a sheep with her
lamb. And the lesser penalties for wounds, &c., should have been stated
in solidi of three tremisses, representing the ox of 16 months. These
values in gold tremisses would then have been consistent with that of the
full-grown four-year-old ox as stated in Tit. VI. at two solidi--_i.e._
the normal value of the ox before the change in the currency.

But, as it is, the text is not consistent throughout. Returning to the
statement of the wergelds:

  Nobilis         1440 solidi.
  Litus            120   ”

we are struck at once with the excessive amount of that of the nobilis.
But if the solidi were of two tremisses, as they should have been, then,
translated into solidi of three tremisses, the amounts would stand thus:--

  Nobilis      960 solidi, or 1440 bullocks.
  Litus         80   ”     or  120    ”

These amounts appear to be still far too large; whether regarded in
cattle or in gold.

[Sidenote: The statement of wergelds seems to be in silver solidi.]

It seems probable that, in spite of the last clause, the wergelds of the
Lex Saxonum, in the text as we have it, are described in Charlemagne’s
_silver solidi of_ 12_d._--the solidi which at the moment he was trying
at a ratio of 1:4 to substitute for gold.

Very nearly contemporary with the Lex Saxonum is Charlemagne’s
_Capitulare de partibus Saxonie_, A.D. 785.[167] In this document no
wergelds are mentioned, but other fines are described which may be
compared with them. And it will be noticed that three classes are
mentioned--nobilis, ingenuus, and litus.

In s. 19, for refusal to baptize an infant within a year of birth:--

  Nobilis          120 solidi to the fisc.
  Ingenuus          60     ”         ”
  Litus             30     ”         ”

So again in s. 20 for illicit marriage, and in s. 21 for engaging in
pagan rites:--

  Nobilis            60 solidi.
  Ingenuus           30    ”
  Litus              15    ”

These fines were evidently payable in the silver solidus, for in s. 27
the penalty for a man remaining at home contrary to the bann was to be
10 _solidi_ or _one ox_. Obviously this is the value of the ox in silver
solidi before they were made legal tender. Its gold value was only 2
solidi, as stated in Tit. VI. of the Lex. And, as we have seen, the value
of the ox in the silver solidus of twelve pence was maintained at an
average of about 8 solidi.

[Sidenote: Capitulare of A.D. 797.]

Twelve years later in date another Capitulare was issued, entitled
_Capitulare Saxonicum_ and dated A.D. 797.[168] It was the result of a
conference and contract between Franks and Saxons of the three tribes,
Westfali, Angrarii, and Ostfali. According to s. 3 the Saxons agreed that
whenever, under the laws, Franks had to pay 15 solidi, the Saxon nobilis
should pay 12 solidi, ingenui 5 solidi, and liti 4 solidi.

Then follows a clause which is interesting as showing that the payment of
wergelds still was a general practice. It enacted that when a homicide
had occurred and a case had been settled in a district by the neighbours,
the pacificators should, according to custom, receive 12 solidi for
their trouble (_pro districtione_), and in respect of the wergeld (_pro
wargida_) they should have sanction to do what according to their custom
they had been used to do. But if the cause had been settled in the
presence of a _royal Missus_, then it was conceded that on account of
that wergeld the neighbours should still have their 12 solidi; and that
the Missus of the King, for the trouble taken in the matter, should
receive another 12 solidi, _ad partem Regis_. In clause 7, homicide of a
_Missus regalis_, or theft from him, was to be paid for threefold.

Further, in Clause 9, the King, with the consent of Franks and Saxons,
was to have power at his pleasure, whether _propter pacem_, or _propter
faidam_, or for greater causes, to double the amount of the usual _bann_
of 60 solidi, making it 120 solidi, and to insure obedience to his
commands by any amount up to 100 or even 1000 solidi.

Lastly, in the final clause is the following:--

[Sidenote: Wergelds payable in cattle &c. or in the silver solidi of 12
pence.]

    Moreover, it is to be noted what the solidi of the Saxons ought
    to be, _i.e._:

    The one-year-old bullock of either sex in autumn, as it is
    sent into the stable, for 1 solidus. Likewise in spring, when
    it leaves the stable, and afterwards as it grows in age, so
    its price increases. _De annona bortrinis_ let them give for a
    solidus 40 _scapili_, and of rye 20.

    _Septentrionales_ for a solidus, of oats 30 scapili, of rye 15.

    _Bortrensi_ 1½ sicla of honey for a solidus. _Septentrionales_ 2
    sicla of honey for a solidus; also of clean barley they give the
    same as of rye for a solidus.

    In silver let them make twelve pence the solidus. (_In argento
    duodecim denarios solidum faciant._) In other things at the price
    of estimation.

So that in this Capitulare of A.D. 797, issued just before Charlemagne
became Emperor, there is the clear statement that the one-year-old
bullock is still to be reckoned as one solidus, and the further statement
that in silver 12 pence make the solidus. And this in a clause headed
with the words: ‘Moreover it is to be noted what the solidi of the Saxons
ought to be.’

The fact therefore seems to be that these Capitularies relating to the
Saxons, and the Lex Saxonum, following upon the Conquest of the Saxons,
date from the middle of the time when the change in the currency from
gold to silver was taking place, and the silver solidus of 12 pence,
first of Merovingian standard and ultimately of the _nova moneta_, was by
law made equivalent for payments to the gold solidus of the Lex Salica of
three gold tremisses or of 40 pence.

Now, having derived this information from the Capitularies, let us turn
back to the laws.

[Sidenote: Destruction of eye &c. paid for with a half wergeld.]

In Tit. I. _De vulneribus_, the penalty for destroying another’s eye
is 720 solidi, exactly half the number of solidi in the wergeld of the
nobilis, and for both eyes 1,440 solidi--_i.e._ exactly the amount of
the whole wergeld of the nobilis. These proportions are found in several
other laws, and were quite natural if the payments were made in both
cases in the _same_ solidi. But these wounds ought, according to the
final clause in the law, to have been paid for in the solidus of three
tremisses, while the wergelds should have been paid in solidi of two
tremisses.

Clearly they are _not_ stated in different solidi, for if for a moment we
take them to be so, then the two eyes of the nobilis would be paid for at
a higher value than his life.

[Sidenote: The solidi must be silver solidi.]

Further, if we look at these payments for wounds carefully, it becomes
clear that they cannot be _gold_ values. Three hundred and sixty gold
solidi for a thumb and 260 for the little finger of a nobilis are quite
impossible fines. The little finger of the Saxon nobilis cannot have been
valued at more than the ordinary freeman’s wergeld under the Salic and
Ripuarian Laws.

We conclude then that, in spite of the last clause in the law, these
values, both for wounds and homicide, are silver values, and that the
figures in the text have at some date or other been substituted for the
original ones to meet the change in the currency.

Let us try to realise what the effect upon the wergelds of the Lex
Saxonum would be of Charlemagne’s substitution of the silver solidus of
12_d._ for the gold solidus.

Up to this time the wergelds had been paid in bullocks valued in gold
at the solidus of two tremisses, and the equation was one no doubt of
ancient custom. Now the Capitularies made them payable in silver at
12_d._ to the solidus.

[Sidenote: Confusion in the currency.]

One result became at once apparent. In the Saxon district the value of
the ox went up, as we have seen, from two of the gold solidi to ten of
the new silver solidi--an excessive rise, no doubt, and one likely to
startle everybody. As regards most debts the change did not matter very
much. The debtor got the advantage. But as regards wergelds hitherto
payable in cattle and in gold it mattered very much indeed. It meant that
a wergeld of 100 head of cattle could be paid in silver at one third of
their value. And Charlemagne’s advisers soon found this out. What if a
Frisian or a Saxon killed a Frank? Was he to be allowed to escape with
a silver payment of one third the value of the cattle? Certainly not;
and so, as we have seen in the Capitularies of 781 and 801 enforcing the
receipt of the silver solidus of 12_d._ for all debts, an exception was
made of wergelds payable by Saxons and Frisians who killed a Salic Frank.
These were still to be paid for, as heretofore, in the solidus of 40_d._
of the Lex Salica--_i.e._ the gold solidus of three tremisses.

This, so far as the wergelds were concerned, set the matter right when a
Saxon killed a Frank; but it did not set it right in the ordinary case of
a Saxon slaying a Saxon.

[Sidenote: The wergelds must be divided by three to obtain value in gold
solidi.]

How could this be remedied but by altering the figures of the wergeld and
the compositions for wounds, and inserting silver values instead of the
gold ones? This seems to have been clumsily done, the other clauses in
the laws being apparently left unaltered or only partially altered. But
assuming that the wergelds as they appear in the present text of Tit.
II. are stated in silver solidi of twelve denarii, let us divide them by
three, so as to restore them to gold values in solidi of three tremisses.

The wergeld of the nobilis of 1440 solidi divided by three becomes 480
solidi of three tremisses. And if, following very common precedents, we
take this wergeld of the nobilis, whether from his noble birth or natural
official position, to be a triple wergeld, then the missing wergeld of
the _liber_ or _ingenuus_ would be 160 solidi, as the passage in the
Ripuarian laws so often quoted declared it to be.

[Sidenote: Wergeld of ‘liber’ then 160 solidi.]

The wergelds would then stand thus:--

   Nobilis  480 solidi of three tremisses.
  [Liber    160        ”          ”       ]
   Litus     40        ”          ”

or in the local solidi of two tremisses:--

   Nobilis  720 solidi or bullocks.
  [Liber    240    ”         ”     ]
   Litus     60    ”         ”

These then are the figures which, if we are right, were the original
figures of the Title _De homicidiis_.


IV. LEX ANGLIORUM ET WERINORUM, HOC EST THURINGORUM.

We may probably follow Richthofen[169] in his conclusions that the
Thuringians of these laws were the tribes settled with the Anglii
and Werini in North Thuringia, and that they were promulgated under
Charlemagne about A.D. 802.

[Sidenote: Wergelds of the Anglii and Werini.]

In the first title the wergelds for homicide are stated:--

  Adaling   600 solidi.
  Liber     200 solidi.
  Servus     30 solidi.

These are evidently unaltered gold values.

[Sidenote: A half wergeld for destruction of an eye, hand, or foot.]

The rest of the first five titles relate to wounds, and we need only
mention that the destruction of an eye, hand, or foot, or a blow causing
loss of hearing, was to be paid for with _half_ the wergeld of each
class, following in this respect the custom of the Frisian and Saxon
tribes.

These five titles in the Corvey Manuscript of the tenth century
constitute a whole under the title ‘Lex Thuringorum.’ The remaining
titles are, in this manuscript, added to the Lex Saxonum, to which,
however, they do not appear to belong.

[Sidenote: Triple wergeld of the Adaling.]

The triple wergeld of the Adaling of these laws may have been the result
either of noble birth or official position, or both combined. The wergeld
of the _liber_ of 200 gold solidi, presumably of three tremisses, seems
to connect the customs of the Thuringian tribes of these laws with those
of the Salic and Ripuarian Franks rather than with those of the Saxons
and Frisians. It is worth notice, too, that, while in the Lex Saxonum
and the Lex Frisionum the figures seem to follow a duodecimal system, in
these laws the more usual decimal reckoning is retained as in the Lex
Salica.

The fact that among the additional titles there is one ‘De alodibus’
connects still further these laws, notwithstanding their later date, with
the Salic and Ripuarian laws which contain similar titles. And it is
worth while, for purposes of comparison, to give it at length. (Tit. v.)

[Sidenote: The title ‘De Alodis.’]

    (I) Hereditatem defuncti filius non filia suscipiat. Si filium
    non habuit, qui defunctus est, ad filiam pecunia et mancipia,
    terra vero ad proximum paternæ generationis consanguineum
    pertineat.

    (I) Let the son of the deceased and not the daughter receive the
    inheritance. If he who has died had no son, to the daughter shall
    go the cattle and slaves, but the land shall pertain to the next
    blood relation of the paternal generation.

    (II) Si autem nec filiam non habuit, soror ejus pecuniam et
    mancipia, terram proximus paternæ generationis accipiat.

    (II) But if he had no daughter either, his sister shall take the
    cattle and slaves; the next of the paternal generation shall take
    the land.

    (III) Si autem nec filium nec filiam neque sororem habuit,
    sed matrem tantum superstitem reliquit, quod filia vel soror
    debuerunt, mater suscipiat, id est, pecuniam et mancipia.

    (III) But if he had neither son nor daughter nor sister, but he
    left a _mother_ only surviving, what daughter or sister should
    have had, let the mother take, _i.e._ the cattle and slaves.

    (IV) Quodsi nec filium nec filiam nec sororem aut matrem dimisit
    superstites, proximus qui fuerit paternæ generationis, heres ex
    toto succedat, tam in pecunia atque in mancipiis quam in terra.

    (IV) But if he leaves neither son nor daughter nor sister nor
    mother surviving, he who shall be next of the paternal generation
    shall succeed as heir of the whole as well in cattle and slaves
    as in land.

    (V) Ad quemcumque hereditas terræ pervenerit, ad illum vestis
    bellica, id est lorica, et ultio proximi et solutio leudis debet
    pertinere.

    (V) And to whomsoever the inheritance in the land shall come, to
    him ought to pertain the coat of mail, _i.e._ the birnie, and the
    avenging of the next of kin and the payment of wergeld.

    (VI) Mater moriens filio terram, mancipia, pecuniam dimittat,
    filiæ vero spolia colli, id est murenulas, nuscas, monilia,
    inaures, vestes, armillas, vel quicquid ornamenti proprii
    videbatur habuisse.

    (VI) A mother dying shall leave her land, slaves, and goods,
    to her son, but to her daughter her neck-treasures, _i.e._,
    necklaces, buckles, collars, earrings, robes, bracelets, or
    whatever personal ornaments she appeared to have.

    (VII) Si nec filium nec filiam habuerit, sororem vero habuerit,
    sorori pecuniam et mancipia, proximo vero paterni generis terram
    relinquat.

    (VII) If she had neither son nor daughter, but had a sister, to
    the sister shall she leave the cattle and slaves, but the land
    to the next of the paternal kin.

    (VIII) Usque ad quintam generationem paterna generatio succedat.
    Post quintam autem filia ex toto, sive de patris sive de matris
    parte, in hereditatem succedat; et tunc demum hereditas ad fusum
    a lancea transeat.

    (VIII) As far as the fifth generation the paternal kin succeed.
    But after the fifth, a daughter, whether on the father’s or on
    the mother’s side, may succeed to the whole inheritance; and
    then finally let the inheritance pass over from the spear to the
    spindle.

[Sidenote: The alod included both land and cattle.]

As in the other laws so under these rules the alod clearly embraced both
the land and the ‘pecunia’ and ‘mancipia’ upon it. Its object, like that
of the similar clauses in the other laws and also like that of the Edict
of Chilperic, seems to have been to protect the land in ordinary cases
from passing over ‘from the spear to the spindle,’ while at the same time
sanctioning inheritance by females even in the land of the alod when
otherwise there would be danger of its passing away from the kindred
altogether.

In certain cases the land of the alod was made to go to male heirs while
the ‘pecunia’ and ‘mancipia’ upon it went to females.

Whether the word ‘pecunia’ in such cases should be translated by
‘cattle’[170] or the wider word ‘chattels,’ it must have included the
cattle, and at first sight it is not easy to see how the rule would work
which gave the cattle of the alod to a female and the land to a distant
male heir. The cattle must in the nature of things have remained or be
put upon land, and the awkward question arises upon whose land they
remained or were put. And so we are brought once more to the practical
question of the position of women in relation to the land. That in
certain cases in default of male heirs they could inherit land is one
thing; but this question of the cattle and slaves involves quite another.

[Sidenote: Male next of kin takes the land and chieftainship, but females
may have cattle upon the land.]

When a sister received her portion or gwaddol under Cymric custom, and
when she received so many cows for her maintenance from the chief of
kindred, she must have had rights of grazing for her cattle in the family
herd of her gwely. Till she married, her cattle would graze with the
cattle of her paternal gwely; and when she married, with the cattle of
her husband’s gwely. And so under the rules of this clause ‘De alodibus’
it does not follow that the distant male heir succeeding to the land of
the alod was to evict her and her cattle from it. With the land he had
to take also the responsibilities involved in the family holding. Clause
V. states that to whomsoever the inheritance of the land shall come, to
him ought to pertain the coat of mail, _i.e._ the birnie, and with it
the duty of the chief of the kindred to avenge his kin and to see to
the payment of wergeld if any one of the kin should be slain. Read from
this point of view this clause ‘De alodibus’ becomes good evidence that,
whatever changes may have been made as to female inheritance, the _land_
of the alod had not yet lost all its tribal traits. It had not yet become
the ‘res propria’ of an individual possessor under Roman law.


V. THE SO-CALLED LEX CHAMAVORUM.

This document, according to most recent authorities, relates to a
district between the Frisians and Saxons to the North and East, with the
river Meuse to the South.[171]

[Sidenote: The Chamavi under Frankish law.]

Its real title seems to be _Notitia vel commemoratio de illa euva quæ se
ad Amorem habet_, and it seems to be not so much a code as a memorandum
of the wergelds and fines of a Frankish people settled in the district
alluded to. Probably in date it may belong to the time of Charlemagne,
but before his changes in the currency.

It is of some interest to this inquiry because of its peculiar position,
as relating to a tribe or people under Frankish rule, and yet with
customs of its own which have survived Frankish conquest.

The Notitia starts with the declaration that in ecclesiastical matters,
as regards the _bannus dominicus_, the same laws prevail ‘as other Franks
have.’

[Sidenote: Wergeld of the Homo Francus three times that of the ingenuus.]

And then it at once describes the wergeld, as follows:--

    The wergelds of this law are as under. Whoever kills--

  Homo Francus  600 solidi et pro fredo 200 sol.
  Ingenuus      200    ”       ”         66⅔ ”
  Lidus         100    ”       ”         33½ ”
  Servus         50    ”       ”         16⅔ ”

Then follows a clause (VII.) which states that if any ‘Comes’ be slain in
his own ‘comitatus’ the wergeld is to be three times that according to
his birth.

The _Homo Francus_ thus has a triple wergeld, like the Comes. But the
_Comes_ may possibly be not _ingenuus_. He may be a lidus with official
position, and so presumably, according to Clause VII., with a threefold
wergeld of only 300 solidi.

In the next clause the Royal ‘Missus’ is put in the same position while
on the King’s business. His wergeld is also to be trebled.

What, then, is the _Homo Francus_ with a wergeld three times that of the
ordinary _ingenuus_ of the district of Amor?

The wergeld of the latter is the full normal wergeld of 200 solidi. The
Homo Francus in this district was therefore very much above the ordinary
freemen of other laws. He was evidently a Frankish landowner on a large
scale, towering in social position above the ordinary freemen of the
district.

The _casa_ and _curtis_ of the Homo Francus alone were protected by
special clauses (XIX. and XX.), and of him alone are any hints given as
to kindred or inheritance. Clause XLII., in the following few words,
enlightens us as to his social position:--

    If any Francus homo shall have sons, his inheritance in woods
    and in land shall pass to them, and what there is in slaves and
    cattle.

    Concerning the maternal inheritance, let it go in like manner to
    the daughter.

We must probably consider the privileged position of the Homo Francus
as presumably the result of Frankish conquest. The great landowner may
have been the holder of a benefice, or a tenant _in capite_ placed upon
the royal domain with ministerial and judicial duties, and the triple
wergeld may fairly be assigned to his official position.

But to return to the wergelds.

The payment _pro fredo_ seems to have been equal to an additional one
third of the wergeld.

[Sidenote: Payment for the eye etc. one quarter the wergeld.]

From clauses XX. and XXXII. it appears that the value of an eye or hand
or foot was one quarter of the wergeld, instead of half as in the Salic
and Ripuarian Laws.

Theft was to be paid for ninefold with four solidi _pro fredo_.

The further clauses regarding theft in this border district of forests
and cattle and mixed population are not quite easily understood, nor need
we dwell upon them.

In c. XXX. the penalty for letting a thief go without bringing him before
the Comes or centenarius was 60 solidi, as in the Ripuarian Laws.


VI. CONCLUDING REMARKS.

Before passing from the laws, the compilation of which seems to date
from the conquests of Charlemagne, it may be well to note that, regarded
from the point of view of the wergelds, the tribes whose customs have
been examined in the last two sections seem to have belonged to the
Frankish group with wergelds of 200 gold solidi, while on the other hand
the Frisians and Saxons seem to have belonged to the other group with
wergelds of 160 gold solidi.

This grouping of the tribes may not be exactly what might have been
expected.

[Sidenote: The two groups of tribes with wergelds of 200 and 160 solidi.]

Geographically the Frankish group is sufficiently compact. The other
is widely extended and scattered. Frisians and Saxons remain in their
ancient homes. The Alamannic, Bavarian, and Burgundian tribes have
wandered far away from theirs. But in their northern home they may have
been once sufficiently contiguous to have shared many common customs
and among them a common wergeld of 160 solidi.[172] Settled in their
new quarters, the Rhine and its tributaries seem to have been the great
highways of commercial intercourse and the connecting links between them.
Immigrants from them all met as strangers (_advenæ_) in the Ripuarian
district, and, as we have seen, we owe our knowledge of some of their
wergelds very much to the recognition of them in the Ripuarian law.




[Illustration]




CHAPTER VIII.

_THE TRIBAL CUSTOMS OF THE OLDEST SCANDINAVIAN LAWS._


I. THE MONETARY SYSTEM OF SCANDINAVIA.

The facts needful for the understanding of the monetary system of the
Scandinavian tribes need not detain the reader very long.

The weight system applied to gold and silver was that evidently derived
from the Eastern Empire.

[Sidenote: Marks, ores, and ortugs. The ortug the Greek stater or
ox-unit.]

It consisted of the mark, the ore, and the ortug. The mark was divided
into eight ores or ounces, and the ore or ounce into three ortugs, which
were in fact staters or double solidi. The ounce being the Roman ounce
of 576 wheat-grains, the ortug contained 192 wheat-grains, and was the
exact counterpart in wheat-grains of the Greek stater, _i.e._ Professor
Ridgeway’s ox-unit. Reckoned in wheat-grains, two Scandinavian marks
of 8 ounces were, as we have seen, exactly equal to what the early
metrologists called the (light) _Mina Attica_, which consisted of 16
Roman ounces or 9216 Roman wheat-grains. Four gold marks thus made a
_heavy_ gold mina, traditionally representing a normal wergeld of 100
head of cattle.

But this heavy gold Mina of four marks had been seemingly twisted from
its original Greek character to bring it into consistency with Roman
methods of reckoning. It was divided no longer into 100 staters, but now
into 96 ortugs, so as to make the ortug double of the solidus and one
third of the Roman ounce, thus throwing it out of gear, so to speak,
with the normal tribal wergelds of 100 head of cattle. It was thus made
to contain only 96 ox-units, although in actual weight its 32 Roman
ounces really did contain, so long as the standard of the Roman ounce was
adhered to, 100 Attic staters or ox-units.

That the light mina of two marks or 9216 wheat-grains had found its way
by the Eastern trade routes into Scandinavia appears from its survival
in the monetary system of countries on both sides of the Baltic to quite
modern times.

[Sidenote: The pound of two marks.]

In Northern Europe the pound of twelve ounces was not, as elsewhere, the
usual larger unit. The pound of two marks or sixteen ounces had taken its
place. And except in Norway and Denmark, which sooner or later adopted
the monetary and weight system of Charlemagne, the ounce remained the
Roman ounce of 576 wheat-grains. At the same time, as in the case of
the Merovingian system, in spite of the Imperial influence of the gold
solidus, there were evident marks of a tendency towards the ancient
Eastern standard of the stater rather than the heavier standard of the
double solidus. The ortug of 192 wheat-grains seems to have often sunk in
actual weight below even the Attic weight to that of the ancient Eastern
stater of 8·18 grammes.

Thus when the Russian weight system was recorded in the time of Peter the
Great the unit both for precious metals and goods was found to be the
_Zolotnic_ or gold piece. Thus--

  Dolja    =    ·0444 grammes  =  wheat-grain.
  Zolotnic =   4·265     ”     =  96 w.g.
  Funt     = 409·511     ”     =  96 zolotnic, or 9216 w.g.

Here, then, _in wheat grains_ the Funt is the light Mina Attica over
again, Romanised in its divisions. The Zolotnic is the solidus or
half-stater. But in actual weight the pound is exactly half of the
ancient Eastern gold mina of 818 grammes.

The Pfund of Silesia (Breslau), according to Martini, was 405 grammes,
and that of Poland (Cracow) the same. Only Sweden and Riga seem to have
adopted or preserved higher standards, the double mark of Sweden being
425 and that of Riga 419 grammes; but even these fell far short of the
standard weight of 16 Roman ounces, viz. 436 grammes. But throughout, low
as the standard of the Baltic _Funts_ or double marks may have been, they
were divided according to the Roman commercial weight system into _ores_
or ounces and _loths_ or half-ounces, and _gwentschen_ or drachmas of one
eighth of an ounce, just as if they were of full Imperial weight. The
marks and the ores remained, but the old division of _ores_ into ortugs
or staters had long ago disappeared.

The division into marks, ores, and ortugs was, however, in full force at
the time of the Norse laws, both for gold and silver. And the evidence
of actual weights seems to show, not only that for the purposes of the
Eastern trade routes, reckoning in marks, ores, and ortugs was in common
use, but also that the standard, like that of the Merovingian coinage,
was the ancient Eastern standard.

Thus the following weights, believed to belong to the Viking period,
from the island of Gotland, are now in the Royal Museum at Stockholm
(Nos. 4752 and 5984).

[Sidenote: The ortug in weight = Eastern stater or two Merovingian
solidi.]

  o   o     o   o
    o         o
  o   o     o   o

  o   o     o   o
    o         o    819   grammes = 100 staters or ortugs of 8·19
  o   o     o   o

        o o
         |
      o--o--o       57·25   ”    =   7    ”         ”       8·1
         |
        o o


       o   o        32·65   ”    =   4    ”         ”       8·16
       o   o


       o   o        32·4    ”    =   4    ”         ”       8·1
       o   o


         o          24·35   ”    =   3    ”         ”       8·12
       o   o

The unit of these weights is exactly the Eastern stater of 8·18 or two
Merovingian solidi.[173]

Whether this standard had been arrived at independently of the
Merovingian standard, or adopted from it, we must not stop to inquire. It
is enough that the ortug at the date of the laws through Roman influence
had come to be reckoned as one third of the ounce.

Whatever may have been the early Byzantine influences and that of Eastern
trade routes, long before the date of the Norse laws, Scandinavia had
come under Frankish influences also.

[Sidenote: The mark of 8 Roman ounces and Charlemagne’s mark of the _nova
moneta_.]

Already during Merovingian times, chiefly through the Frisian mint at
Duurstede, Merovingian currency had become well known on the Baltic, and
we have seen that the first Scandinavian coins were copies from those of
the Duurstede type. Hence it came to pass that in the most ancient of
the Norse laws the old Scandinavian reckoning in gold and silver marks,
ores, and ortugs had become connected with the Frankish currency. During
the period of Merovingian influence the Merovingian ounce and the Norse
ore were both, reckoned in wheat-grains, the ounce of the Roman pound,
whatever may have been their actual weight. The mark of eight ounces
contained 4608 wheat-grains of gold or silver. But at last, as the
result of Charlemagne’s conquests in the North, his _nova moneta_ with
its higher standard was brought into contact with Scandinavia. His mark
of eight of his ounces or 5120 wheat-grains ultimately superseded in
Norway and Denmark the old mark of eight Roman ounces. Hence, as all the
Scandinavian laws as we have them, are of later date than Charlemagne’s
conquests, the question must arise, which of the two marks is the one in
which the wergelds and other payments are described.

In the oldest Norse laws the wergelds are stated mostly in _silver_
marks, ores, and ortugs. The ratio between gold and silver was 1:8, so
that an ore of gold equalled a mark of silver, and thus the translation
of silver values into gold is easy. The laws themselves, as we shall
find, make this perfectly clear. A wergeld stated as of so many gold
marks is divided in the details of payment into silver marks, ores, and
ortugs at the ratio of 1:8.


II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAWS.

[Sidenote: The Gulathing law.]

In approaching the consideration of the Scandinavian custom as to
wergelds and the structure of tribal society as disclosed in the ancient
laws, I do it with great diffidence, especially as, for the translation
of Old Norse, I am dependent on others.

On the whole it seemed best to concentrate attention upon the
_Gulathingslög_ as the oldest of the Norse laws. The Danish and Swedish
laws and the Grágás of Iceland no doubt under competent hands would
yield valuable additional evidence, but the oldest of the Norse laws may
probably be fairly taken as the most representative of early Northern
custom, and at the same time most nearly connected with the object of
this inquiry.

Geographically the Gulathing law was in force in the southern portion
of Norway. It seems to have embraced, in about the year 930, three, and
afterwards six, _fylkis_ or districts each with its own _thing_ and
local customs.[174] In this respect it resembled the Frisian and Saxon
laws, both of which recognised, as we have seen, the separate customs of
tribal divisions contained in the larger district over which the laws had
force.

The Gulathing law must therefore be regarded as in some sense a
compilation or collection of customs rather than one uniform law. For
instance, there are three or four separate descriptions of the wergeld
and the modes of its payment and receipt. One of these is avowedly of
later date. The older ones may probably describe local variations of
general custom, belonging to one or another of the divisions, and even
these bear marks of later modification and additions.

As usual, the introduction of Christianity was the occasion and
perhaps the cause of the compilation, and therefore from the time of
the formation of Dioceses by King Olaf (A.D. 1066-93) ecclesiastical
influence must be expected. But on the whole this Gulathing law presents
in some points a far more interesting and instructive picture of social
conditions resulting from tribal custom than the laws of other tribes
already examined of much earlier date.

[Sidenote: The Frostathing law.]

The next important of the ancient laws of Norway is the _Frostathingslög_
belonging to the more northerly district of Drontheim. Without pretending
to have made it the subject of special study, I have here and there found
it useful in elucidation of the Gulathing law, and as showing that tribal
custom, though with local variations, was in force over a wider district
than that under the Gulathing law.

The question of the structure of tribal society and the division of
classes in Norway may be most conveniently approached from the point of
view of the _rett_ or ‘personal right,’ somewhat analogous to the Irish
‘honour-price’ and the Welsh ‘saraad.’

[Sidenote: Grades of personal ‘rett.’]

Both in the Gulathing law and in the Frostathing law this personal ‘rett’
lies at the root of the graduated payments for insults, wounding, and
homicide. And the statements of it are practically identical in the two
laws. They are as follows:--

     _Gulathing_ (200)               _Frostathing_ (X. 35)

                                 Leysing before freedom’s
                                   ale                   4 ores
  Leysing                6 ores  Leysing after freedom’s
                                   ale                   6 ores
  Leysing’s son          8  ”    Leysing’s son           8 ores or 1 mark
  Bónde                 12  ”    Reks-thane[175]        12 ores
                                 Árborinn man[176]      16 ores or 2 marks
  Hauldman[177]         24  ”    Hauldman               24 ores or 3 ”
  Lendman and Stallare  48  ”

The chief difference is that the Frostathing law divides the leysings
into two classes, a significant point on which important considerations
turn.

The things for which full rett was paid may be described as insults. If a
man were knocked down, even if he fell on his knees, or if his moustache
were ‘seized with hostile hand’ (195), or if a man were called ‘a mare or
bitch,’ these were insults for which full rett was to be paid (196).

The payments for inflicting serious wounds (sár) were regulated in the
same gradations according to rank as the rett, but were threefold in
amount. These payments were made in ‘baugs’ or rings, each of twelve ores
of silver.

      _Gulathing Law_ (185)         _Frostathing Law_ (IV. 53)

  Leysing                 1 ring
  Leysing’s son           2 rings  Leysing          2 rings
  Bónde                   3   ”    Reks-thane       3   ”
                                   Ár-borinn man    4   ”
  Odal-born man[178]      6   ”    Hauld            6   ”
  Lend-man and Stallare  12   ”    Lend-man        12   ”
  Jarl                   24   ”    Jarl            24   ”
  King                   48   ”    King            48   ”

These were the penalties paid by the person inflicting the wound--_i.e._
_three times his own rett_--and besides this he had to pay _sár-bót_
according to the extent and character of the wound, as in other laws. He
also had to pay the healing fee (185) of the injured person.

[Sidenote: The hauld or odal-man the typical tribesman.]

Passing from insults and wounds to homicide, throughout the Gulathing
law the hauld, or odal-born man, is taken as the typical tribesman. His
wergeld is described, and then the wergelds of other classes are said to
vary according to the rett.

But before we consider the wergelds it must be remarked that here, as
elsewhere, there is no wergeld for a murder within the family.

In clause 164 under the heading of ‘A madman’s manslaying’ is the
following:[179]

    Nu hever maðr óðz mannz víg vigit, vigr sunr faður, æða faðer
    sun, æða bróðer bróðor, æða systkin eitthvert, æða vigr barn
    móðor sína, æða móðer barn sitt, þá firi-vigr hann arve þeim
    er hann átti at taca. Scal sá þann arf taca er nestr er þá, oc
    helldr scal konongr hava en hann. En hann være í lande, oc gange
    til skrifta, oc have sitt allt.

    Now if a man has done the slaying of a madman, if a son slays his
    father, or a father his son, or a brother his brother or any of
    his sisters and brothers, or a child slays its mother or a mother
    her child, then he forfeits the inheritance he ought to take.
    The one next to him in kin takes that inheritance, and the King
    shall have it rather than he. But he shall stay in the land and
    be shriven and keep all that is his.

[Sidenote: No wergeld within the family.]

In the Gulathing law the kindred within which there is no wergeld is thus
the actual family, and it is in full accord with the instance in Beowulf
in which the old father is represented as having to put up with the
presence of a son by whose arrow another of his sons had been slain, such
a crime being one which under tribal custom could not be avenged.

Turning now to the amount of the wergeld of the Gulathing law and the
Frostathing law, it must again be remarked that there are in these laws
varying accounts of it.

[Sidenote: The wergeld of the Frostathing law of later date awarded in
marks of gold.]

In the first place there are some avowedly of later date than others.
Thus, in Frostathing VI. 1 the description of the wergeld is commenced as
follows:--

    Her hefr upp oc segir í frá því er flestum er myrkt oc þyrftu
    þó marger at vita, fyrir því at vandræði vaxa manna á millum en
    þeir þverra er bæði höfðu til vit oc góðan vilja, hvesso scipta
    scylldi ákveðnum bótum ef þær ero dœmdar, fyrer því at þat er nú
    meiri siðr at ánemna bœtr, hvesso margar mercr gulls uppi sculu
    vera epter þann er af var tecinn, oc velldr þat at marger vito
    eigi hvat laga bót er, er þó at vissi, þá vilia nú fáer því una.
    En Frostoþings bóc scipter lagabót hveriom epter sínum burð oc
    metorði, en ecki hinum bótum er þeir ofsa eða vansa er í dómum
    sitia oc sáttmál gera.

    Here begins and is told that which to most is dark and yet many
    had need to know, because difficult matters increase among men
    and those grow fewer who both had the wits and the goodwill for
    it,--how to divide the fixed _bóts_ (bœtr) if they are adjudged,
    _for it is now more the custom to fix the bóts, how many marks
    of gold_ shall be paid on account of him who was slain, and the
    cause of that is that many know not what the lawful _bót_ is,
    and though they knew it, few will now abide by it. _But the
    Frostathing book divides the lawful bót_ to every one according
    to his birth and rank, and not those _bóts_ (bœtr) which they
    that sit in courts and make terms of peace put too high or too
    low.

Here the writer clearly refers back to the ancient Frostathing book as
the authority for the ‘lawful bót,’ but on examination he seems to add
certain additional bóts which the courts now include in the round amount
of so many gold marks awarded by them in each case as it comes before
them.

The writer takes first the case of an award of six marks of gold and
describes how it is to be divided, and then the case of five marks of
gold, and so on.

[Sidenote: Division of it in silver marks at ratio of 1:8.]

The division is throughout made in _silver_ marks, ores, ortugs, and
penningar. But when the items are added up, the total in silver divided
at the ratio of 1:8 brings back the result as nearly as may be to the
number of _gold marks_ from which the division started. Thus in the
clause describing the division of the wergeld of six marks of gold,
the silver items add up to 48 marks exactly, and the division of this
by 8 brings back the amount to six marks of gold. And so in the clause
dividing five marks of gold, the items seem to add up to one ortug only
less than 40 silver marks, and again a division by 8 brings the amount
sufficiently near to five marks of gold.

[Sidenote: The group of Bauga men. The other group of Nefgildi-men.]

In each case, however, the writer adheres to the same scheme of division.
When he has 6 gold marks to divide he first assigns 18 silver marks to
_Bauga_ men (_i.e._ the near group of kinsmen of male descent on the
paternal side only), and then he adds half as much (_i.e._ 9 marks) to
a group of _Nefgildi-men_[180] among whom are included, with others,
kinsmen of descent through females on both paternal and maternal sides.
So that these two groups of Bauga men and Nefgildi get 27 marks. In
all cases he makes the group of Nefgildi receive only half the amount
received by the Bauga group, the whole amount being reduced according to
the number of gold marks to be divided. After the amount allowed to these
two groups, the remainder is made up of additional payments some of which
he expressly declares were not included under old law. Thus (in clause
6) he adds an amount which he says was ‘not found in the old Frostathing
book’ and justifies it by saying that there would be danger to the slayer
if it was not paid. And so again (in clause 9), there are additions for
half-brothers, half-brothers’ sons, &c., of the same mother. And these
additions are included in the six marks of gold ‘according to new law.’

Evidently, therefore, we must not take these wergelds of six and five
marks of gold with their divisions as representing the ancient customary
wergelds of this class or that in the social scale, but rather as
showing the extent to which the system of wergelds had become somewhat
arbitrarily expanded and elastic in later times. The total amount with
additions was apparently increasing as time went on.

[Sidenote: Later statement in the Gulathing law.]

As in the Frostathing law so also in the Gulathing law (clause 316,
p. 104) there is a statement of wergeld, avowedly of a late date and
added under the name of _Biarne Marðarson_, who lived about A.D. 1223.
And this, too, seems to belong to a time when the amount of the wergeld
was awarded by some public authority in so many marks of gold. He takes
the case of a wergeld of six marks of gold and shows how it ought to be
divided; and then the case of a wergeld of five marks of gold and shows
how that should be divided--‘What each shall take of five marks of gold’
and so on--just as was done by the writer in the Frostathing law.

One might have supposed from this that, as the method of awarding fixed
amounts and the amounts to be divided in gold marks were the same, so the
groups and the persons included in them would have corresponded also. But
they differ considerably.

Biarne Marðarson up to a certain point follows the same scheme as the
writer in the Frostathing.

In his division of six marks of gold he, too, draws a line at the amount
of 27 marks, and he also divides this amount into thirds and gives two
thirds to one group and one third to the other. The son of the slain and
the brother of the slain form the first group and take 18 marks, and a
second group take 9 marks, the two together taking 27 marks.

The group who together take 9 marks, like the Nefgildi-men of the
Frostathing, embraces however by no means the same relatives as are
included in the latter. The only persons included are the father’s
brother and his children, _i.e._ first cousins or brœðrungs of the slain,
but among them are included the sons of concubines and of female first
cousins. And after the mention of these is the statement, ‘_All that
these men take amounts to 27 marks and 2 aurar_.’ Out of the remainder of
the 6 gold marks or 48 silver marks other relations take to the ‘fifth
man’ on the male line and the sixth on the female line.

Biarne Marðarson seems, like the writer in the Frostathing law, to have
had to some extent a free hand in the division. It is clear that there
was much variety in the course adopted. Nor does he seem to have been
by any means so systematic and accurate as the other writer. The silver
amounts, when added up, do not so accurately correspond with the six gold
marks to be divided.

[Sidenote: Earlier wergeld of the Gulathing law. In silver marks and
cows.]

We turn, then, from these later statements to what seems likely to be an
older statement of the Norse wergeld, viz. that which commences at clause
218 of the Gulathing law.

It describes the division of the wergeld of a ‘hauld’ or ‘odal-born’
man, and it begins with the explanation that the ‘mannsgiöld’ or wergeld
decreases and increases from this as other retts.

It describes the various amounts both in silver marks and in cows, which
the other statements do not, and this, so far as it goes, is a sign of
antiquity.

In clause 223 is inserted a statement of the various things in which
wergelds may be paid. The only item the value of which is given is the
cow, which is to be taken at 2½ ores if not older than eight winters and
if it be ‘whole as to horns and tail, eyes and teats, and in all its
legs.’ And this silver value of the cow--2½ ores--is the one used in this
older description of the wergeld.

The wergeld according to this statement consists of bauga payments and
upnám payments. The first are received in three baugs or rings thus:--

[Sidenote: The 64 cows of the Bauga group.]

  _Höfuð_ (head) _baug_, taken by
  the son and the father of the
  slain                                  10 marks or 32 cows.

  _Bróður baug_, taken by brother,
  or if none, by the son of the slain     5 marks or 16 cows.

  _Brœðrungs baug_ taken by
  the father’s brother’s son, _i.e._ first
  cousin of the slain                     4 marks or 13 cows - ½ ore.
                                         --------    ------------------
                                         19 marks or 60 cows + 2 ores.

  To this is added for women’s
  gifts, _i.e._ the mother, daughter,
  sister, and wife of the slain, or in
  default to the son of the slain         1 mark  or  3 cows + ½ ore.
                                         --------    ------------------
      Total                              20 marks or 64 cows.

After this statement is the declaration, ‘Now all the baugs are counted.’

A clause is here interpolated changing the point of view so as to show
how, and by whom on the slayer’s side the same three baugs were paid.

    Nú scal vigande bœta syni hins dauða hafuðbaug.

    (222) The slayer shall pay to the son of the dead the _höfuð
    baug_.

    En bróðer viganda scal bœta brœðr hins dauða bróðor baug, ef hann
    er til, ellar scal vigande bœta.

    The slayer’s brother (if he has one) shall pay to the brother of
    the dead the _bróður baug_; otherwise the slayer shall pay it.

    Nú scal brœðrongr viganda bœta brœðrongi hins dauða brœðrongs
    baug, ef hann er til, ellar scal vigande bœta.

    The brœðrung of the slayer (if he has one) shall pay to the
    brœðrung of the slain the _brœðrungs baug_; otherwise the slayer
    shall pay it.

    Sá er sunr hins dauða er við giölldum tecr, hvárt sem hann er
    faðer æða bróðer, æða hvigi skylldr sem hann er.

    He is [reckoned] the son of the dead who takes the giöld, whether
    he is father or brother or however he is related.

Then follows the declaration, ‘_Now the baugs are separated_’ (‘Nú ero
baugar skildir’).

It seems clear, then, that the slayer was in the last resort responsible
for the whole of these baug payments, as it was the son of the slain who
would take any part of them lapsing through failure of the designated
recipients.

[Sidenote: Women’s gifts.]

The small payments to the mother, daughter, sister, and wife included in
the baug payments are evidently additional and exceptional payments in
regard to close sympathy. The slayer does not make these payments. It is
expressly stated that they are made ‘by the kinswomen of the slayer,’ but
they are included in the even amount of 20 marks or 64 cows.

The recipients of the three baugs, it will be seen, were limited to the
nearest relatives on the _paternal_ side--fathers, sons, brothers, and
first cousins--with no descent through females, while the recipients
in the next set of groups or ‘upnáms’ include also relations through
females: but, again, _only males receive_.

There is, however, one exception. In clause 231 is the following:--

    Nú ero konor þær allar er sunu eigu til sakar, oc systr
    barnbærar. þá scal þeim öllum telia söc iamna, til þær ero
    fertogar.

    All those women who have sons are in the _sök_ (suit), and
    sisters capable of bearing sons. They shall all be held to have
    an equal part in it till they are forty.

Evidently they partake, as under Cymric custom, only in respect of
possible sons who if born would partake themselves. Indeed, the sons only
appear in the list of receivers and in no case the mother, except among
the women’s gifts included as above in the baug payments.

[Sidenote: The upnám group includes descendants of great-grandparents.]

Clause 224 describes the upnám set of recipients as under. It will be
seen that they include descendants of great-grandparents, but no more
distant relations.

  ‘Sac-tal of upnáms or groups _outside bauga men_.’

  _1st upnám._                   { Father’s brother (_i.e._ uncle).
              The slain person’s { Brother’s son.
                                 { Mother’s father.
                                 { Daughter’s son.

  Each gets a mark from the slayer if a hauld be slain; and this
  amounts to _4 marks_.

  _2nd upnám._                   { Father’s brother’s son (_brœðrung_).
                                 { Brother’s daughter’s son.
              The slain person’s { Mother’s brother.
                                 { Sister’s son.
                                 { _Systling_ (? Father’s sister’s son).

  Each gets 6 ores from the slayer if a hauld be slain; and this
  amounts to _3 marks 6 ores_.

  _3rd upnám._                   { Mother’s sister’s son (_systrung_).
                                 { Brœðrung’s child.
                                 { Father’s brœðrung.
                                 { Mother’s mother’s brother.
                                 { Sister’s daughter’s son.

  They get half a mark from the slayer if a hauld be slain
  (probably ½ mark each): _i.e._ _2 marks 4 ores_, making the total
  of upnáms _10 marks 2 ores_.

[Sidenote: Total wergeld 30 marks or 96 cows.]

Then follows the declaration, ‘_Now all the upnám men are counted._’

If we add up the amount of the two sets of payments the result will be as
follows:--

  The three _bauga_ payments of near
  relatives, with addition of women’s gifts  20 marks  or 64 cows.

  The _upnám_ payments within
  descendants of paternal and maternal
  great-grandparents                         10 marks 2 ores or 32⅘ cows.
                                             ---------------    ---------
                                             30 marks 2 ores or 96⅘ cows.

As in the Frostathing law the _nefgildi-men_ took as a group an amount
equal to one half the amount of the bauga group, so here the _upnám_ men
do the same. Evidently this is the intention.

[Sidenote: Wergeld of the hauld at 1:8 200 gold solidi, or roundly, 100
cows.]

Now if we may take the bauga payments and the upnám payments as
representing in intention 30 silver marks or 96 cows, then, at a ratio
of 1:8, the 30 silver marks equalled, in wheat-grains, exactly 200
Merovingian gold solidi.[181] And this may have been the ancient wergeld
of the hauld.

There is, however, in clause 235 a further payment mentioned extending
‘to the fifteenth degree of kinship’ and amounting to about 1 mark and 3
ores. Possibly (though I hardly think it likely) this formed a part of
the original wergeld, and if it be added, it would increase the wergeld
to 31 marks, 5 ores, and at 2½ ores to the cow the wergeld would be
increased to 101⅕ cows. If we might take this as roughly aiming at the
round number of 32 marks and 100 cows, the wergeld of the hauld would
be, at the ratio of 1:8, four gold marks or 100 cows: _i.e._ in actual
weight the heavy gold mina of 32 Roman ounces, which under Greek usage
was divided into 100 staters or ox-units. The confusion between 96 and
100 cows is so likely a result of the application of Roman methods to
the division of the mina that we need not regard it. That the one or the
other of these amounts may have been the original wergeld of the hauld
representing originally 100 cows is consistent at least with widely
spread tribal usage.

This view is confirmed by the fact that the further payments mentioned
in the Gulathing are distinctly abnormal ones, and so presumably added at
a later date like those mentioned in the Frostathing law.

We are justified in so considering them, because in the laws themselves
the persons to whom they were made are expressly called _Sak-aukar_, or
‘additional persons in the sak or suit.’ And when we examine them further
we find that they were hardly likely to have been included among the
original recipients of the wergeld.

Among those of clause 236 are the thrallborn brother and thrallborn
son of the slain, and the half-brother by the same mother; and clause
239 extends the number to the son-in-law, brother-in-law, stepfather,
stepson, oath brothers, and foster brothers. Evidently in these
exceptional cases the rules of strict blood relationship have been broken
away from, and additions have been made to the normal wergeld to stay the
vengeance of persons sufficiently nearly connected in other ways to make
them dangerous if left unappeased.

It was probably these additional payments, added from time to time in
contravention of the strict rules of blood relationship, which caused the
uncertainty of the later laws, and led to the new system of awarding a
round number of gold marks as the total wergeld, included in which were
additions intended to meet the introduction of half-blood and foster
relations and others the risk of whose vengeance it seemed needful
apparently in later times to buy off.

Returning, then, to the original wergeld of the hauld without these
additions, we have seen that it consisted of two sets of payments, bauga
payments and upnám payments, and possibly the small addition of those of
more distant relations.

Now in the Gulathing law there are two other descriptions of the amount
of the bauga payment, and it will be useful to examine them.

[Sidenote: Another statement makes the bauga men pay 18 marks.]

The first is to be found in clauses 179 and 180.

In clause 179 the payment for cutting off a hand or foot and for striking
out an eye is said to be a half ‘giöld,’ and it is added:--

    En ef allt er af einum manni höggvit hönd oc fótr, þá er sá verri
    livande en dauðr; scal giallda sem dauðr sé.

    But if both hand and foot be cut off the same man, he is worse
    living than dead, and is to be paid for as if he were dead.

And then in the next clause, under the heading ‘_About Giöld_,’ is the
following:--

    Nú ero giölld töld í Gula; giallda haulld xviii mörcom lögeyris.
    Nú scolo þeðan giölld vaxa oc svá þverra sem rétter aðrer.

    Now shall be told payments in Gula. A _hauld_ shall be paid for
    with 18 marks of lawful aurar. Starting from this, the payments
    shall increase or decrease as other retts.

Now it would seem that this payment for the death of a hauld was not
the whole wergeld but only the _bauga_ part of it. No details even of
the bauga payments of eighteen marks are given in this clause. It seems
to be inserted in this place simply with reference to the full limit of
payments for injuries. Liability for wounding, under Cymric custom, was
confined to the kinsmen of the gwely, and so it may well be that under
Norse custom it was confined to the bauga group.

But the amount in this clause is only eighteen marks, while that of the
bauga payments of the wergeld we have just been considering, as probably
the earlier one, was twenty marks. How is this to be accounted for? The
answer surely must be that eighteen marks of Charlemagne, reckoned in
wheat-grains, were exactly equal to twenty of the Roman or Merovingian
marks of the earlier period.

[Sidenote: Another detailed statement makes the bauga payment 18 or 20
marks.]

The other statement alluded to is also a statement avowedly of the bauga
payments, and begins with almost the same words, ‘Now the giöld for the
hauld shall be told.’ In this case the details are given and the detailed
payments add up between eighteen and nineteen marks, and yet the total is
given as a little more than twenty marks.

This statement differs from the older one in its divisions, but it has
an air of antiquity and reality about it which suggests that it may
represent a local custom actually in force. Little touches of picturesque
detail seem to bring it into contact with actual life, and to show how
local custom might work out a common object by its own peculiar method.

It meets us abruptly in clause 243 under the heading ‘_On baugar_,’ and
commences thus:--

  Now the giöld for the hauld shall be told--
  6 marks (of 12 ells to the ore) in the _head-baug_,
  4 marks in the _brother’s-baug_,
  2½ marks in the _brœðrung’s baug_.

It then introduces quite another element, viz. the _tryggva-kaup_
(truce-buying).

    Nú scolo fylgia tvau tryggva kaup baugi hverium.

    Two tryggva-kaup shall go with every baug.

    hvert scal eyrir oc fimtungr eyris tryggva kaup.

    Each tryggva-kaup shall be 1⅕ ore.

    En tryggva kaup scal fara bauga manna í mellom.

    Tryggva-kaup shall go between _bauga-men_.

In the next clause it is explained that this ‘peace-price’
(_sættar-kaup_) is paid when the kinsmen come together to make peace,
and that three marks are also paid as _skógar-kaup_--‘forest price,’
_i.e._ payment to release the slayer from being a _skógar-maðr_, or
outlaw living in the forest.

The slayer pays a _baug_ to the son of the dead, and two _truce-prices_,
one to the brother and the other to the ‘_brœðrung_’ of the dead. And the
slayer’s brother pays a _baug_ to the brother of the slain and again two
truce-prices, one to the son of the slain and the other to the _brœðrung_
of the slain. And the _brœðrung_ of the slayer pays a _baug_ to the
_brœðrung_ of the slain and again two ‘truce-prices,’ one to the son
and the other to the brother of the slain. All this is for peace-buying
(_sættar-kaup_) when the kinsmen are met together to make peace.

Then, in clause 245, the women’s gifts are described. The slayer, his
mother, his daughter, and his wife each give a gift of 1⅕ ore to the
wife, mother, and daughter of the slain--making twelve gifts. The sister
of the slayer gives a half gift to the sister, wife, daughter, and mother
of the slain (two gifts), and the slayer, his mother, wife, and daughter,
each give a half gift to the sister of the slain, making the number of
women’s gifts sixteen in all.

The amounts thus stated add up as follows:--

  Baug payments      12 marks 4  ores
  6 truce payments   --       7⅕  ”
  Forest price        3   ”   --
  16 women’s gifts    2   ”   3⅕  ”
                     -------------------
                     18 marks 6⅖ ores

The amount aimed at seems to be 18 marks (the upnám payments being 9
marks), and yet the total is stated as follows:--

    Now with _baugar_ and with _tryggvakaup_ and _skógar-kaup_ and
    women’s gifts it is 20 marks and 2⅖ ores.

Absolute accuracy need not be expected, but there must be a reason for
the difference between eighteen and twenty marks--between the detailed
payments and the total--and it is difficult to suggest any other than the
one already mentioned.

The total amount of the bauga payments seems to be the same in this as in
the other statement, but a new element is introduced with an obvious and
interesting object.

The bauga-men, as before, consist of three groups. The slayer pays
the _baug_ to the son of the slain and appeases the other two groups
by payment to each of them of a truce-price, so that to all the three
bauga groups of the relations of the slain he has acknowledged his wrong
and desire to make composition. And so in each case the representative
of the other two groups of slayer’s relations pay the _baug_ to the
corresponding group of the relatives of the slain and a truce-price to
the other two, so that no relation of the slain could after this point
to any individual as not having joined in the payment to himself or his
group.

The women most deeply concerned on both sides are also present at the
gathering. And each of those connected with the slayer is prepared with
her gift of 1⅕ ore for the corresponding relative of the person slain.

Women’s gifts were included in the bauga payments in the other statement
also.

The clauses relating to the bauga payments are followed by three others,
headed ‘On saker,’ and the further recipients of wergeld, as before,
seem to be divided into _upnáms_ and _sakaukar_, but in this case there
is a strange mixture of the two. The mother’s brother and the sister’s
son are excluded from the upnáms to make way for the half-brother by the
same mother of the thrallborn son.

Clause 246, ‘On saker,’ gives twelve ores to each of the following, who
in clause 250 are called _upnám_ men.

  Father’s brother             12 ores
  Brother’s son                12  ”
  Brother by the same mother   12  ”
  Thrallborn son               12  ”
  Daughter’s son               12  ”
  Mother’s father              12  ”
                               -------
                               72 ores = 9 marks.

So that the bauga and upnám payments--two thirds and one third--added
together once more make a normal wergeld of twenty-seven marks, that is,
thirty of the Merovingian standard.

Then clause 247, ‘Further on saker,’ gives to--

  Mother’s brother              9 ores
  Sister’s son                  9  ”
  Thrallborn brother            9  ”
  Father’s sister’s son         6  ”

[Sidenote: The whole wergeld 2 marks of _nova moneta_ or 30 Roman marks.]

And in clause 248 ‘further on saker,’ a thrallborn father’s brother and a
thrallborn daughter’s son by a kinborn father, take each a mark.

The traditional wergeld seems, therefore, once more to be 27 marks of
Charlemagne or 30 Merovingian marks, and the additional payments appear
to be _sakaukar_. But the upnám group in this case includes the brother
by the same mother and the thrallborn son, leaving outside as sakaukar
the mother’s brother and the sister’s son and the father’s sister’s son
along with the thrallborn brother.

[Sidenote: Payments to outsiders additional to secure safety, and varied
locally.]

It is not within the scope of this inquiry to attempt either to
explain, or to explain away as of no moment, the variations in the
persons included under the various schemes in the groups of bauga and
nefgildi or upnám men. Even such a question as that of the exclusion
from the upnám group of the mother’s brother and the sister’s son, to
make way for the illegitimate half-brother and thrallborn son, is not
necessarily to be disposed of as a later alteration in favour of those
of illegitimate birth. For the Cymric precedent might well lead us to
an opposite conclusion, inasmuch as in the laws of Howell, in spite of
strong ecclesiastical opposition, the ancient pagan custom of admitting
illegitimate sons to share in the father’s inheritance was defended and
retained as too fully established to be given up.[182] Looked at from
the point of view of the feud, they were naturally more on the spot and
therefore of much more moment than the mother’s brother or the sister’s
son.

Professor Vinogradoff[183] has suggested that the evidence of Norse and
Icelandic wergelds seems to point to an original organised group of
agnates who were bauga men and formed the kernel of the kindred liable
for wergeld as contrasted with after additions of relations on both
paternal and maternal sides and others more or less nearly concerned.
The Cymric precedent would lead us to expect to find thrallborn sons as
well as legitimate sons among the bauga men without any special mention
as such. Under Christian influences they may have been excluded from this
group to find a place ultimately, sometimes with special mention, in the
upnám group.

It may or may not have been so, according to the stage of moral growth
arrived at in the particular case of this tribe or that, at the
particular period in question. Hence, although under Norse custom the
amount of the normal wergeld of the hauld may have been constant, the way
in which it was divided and the group responsible for its payment may
well have varied from time to time and in different districts.

It has already been noticed that even under the later methods of awarding
as wergeld an even number of gold marks, both the Gulathing and the
Frostathing laws, in the case of the award of 6 marks of gold, draw a
line, the one at 18 and 27 marks and the other at 20 and 30 marks, as
though these amounts had a strong traditional sanction. Even in the
case of the lower awards the scheme of division being the same with
proportionately lessened figures, this portion of the wergeld was always
divided into two thirds of bauga payments and one third of nefgildi or
upnám payments. This seems to be strong evidence that, although the
persons forming the groups may have differed, the two groups formed
originally an inner and an outer kernel of the wergeld proper, the
additions to which may fairly be regarded as sakaukar.

The repetition of evidence in both laws that the bauga payment of two
thirds was followed by another third of nefgildi or upnám payments, when
connected with the further fact that the two together made an amount
which was, at the value of the cow stated in the laws, equated with 96
or 100 cows, seems to confirm the hypothesis that in this amount we have
the normal wergeld of the hauld. To Professor Vinogradoff’s suggestion
that the bauga payments may have formed an original inner kernel of the
wergeld we may therefore perhaps add that the nefgildi and upnám payments
may have formed an outer shell of the kernel, and that both may have been
included in the original normal wergeld of 96 or 100 cows.

[Sidenote: Wergelds of the several grades of social rank.]

Finally, if this may fairly be taken to be the wergeld of the hauld,
then, recurring to the repeated statement in the Gulathing law that the
wergeld of the hauld being told, the wergelds of others ‘varied according
to the rett,’ the wergelds of the several classes in Norse social rank
may, it would seem, with fair probability be stated as follows:--

  +-----------------------------+-----------+-----------+----------+
  |                             |  Rett in  |Wergeld in |Wergeld in|
  |             --              |silver ores|silver ores|   cows   |
  +-----------------------------+-----------+-----------+----------+
  | Leysing before freedom ale  |     4     |     40    |          |
  |    ”    after     ”     ”   |     6     |     60    | 24 or 25 |
  | Leysing’s son               |     8     |     80    | 32       |
  | Bónde                       |    12     |    120    | 48 or 50 |
  | Ár-borinn or Ættborinn-man  |    16     |    160    | 64       |
  | Hauld or Odal-born          |    24     |    240    | 96 or 100|
  +-----------------------------+-----------+-----------+----------+

The significance of these gradations in the retts and wergelds of Norse
tribal society will become apparent in our next section.


III. THE GRADATIONS OF SOCIAL RANK DISCLOSED BY THE WERGELDS ETC.

We are now able to devote attention to the interesting question of the
gradations in social rank under Norse tribal custom. And we are fortunate
to have the guidance of Dr. Konrad von Maurer’s valuable paper written in
1878 and entitled ‘Die Freigelassenen nach altnorwegischem Rechte.’

[Sidenote: Grades of social rank in the churchyard.]

Although tribal custom, viewed as we view it after the acceptance of
Christianity, may not be altogether what it was originally in its
actual working, yet still it is worth while to seek for the principles
underlying the separating lines between social conditions as revealed
in the laws. So far as they can be discovered, they are sure to be
instructive, for they cannot have been the result of the sudden change in
religion. Their roots at any rate go far back into tribal custom, however
much, as in other cases, the Church may have adopted and modified what it
could not eradicate.

The hard lines of distinction between social classes were kept up even in
the churchyard.

    Kirkiu garðe er skipt í fiórðonga til griæftar. Skall grafua
    lænda menn austan at kirkiu oc í landsuðr undir vxa [_v.r._ upsa]
    dropa, ef þæir æigu lut í kirkiu giærð. En ef þæir æigu æigi lut
    í kirkiu giærð, þá skullu þæir liggia í bónda legho, þá skall
    grafua hauldzmen oc þæira börn.

    The churchyard is divided into four quarters for burial. Lendmen
    shall be buried to the east and south-east of the church, under
    the eaves-drop, if they have taken part in the building of the
    church. But if they have not done that, they shall lie in the
    burial place of a _bónde_. Next to them shall be buried _haulds_
    and their children.

    En nest kirkiu garðe, þá skall grafua hión manz, oc þá menn er
    rekner ero at siofuar strandu oc hafua hárskurði norœna. En ef
    maðr læggær man í frials-giæfua lego, sæckr vj aurum. En ef maðr
    græfuer frials-giæfua í lœysinga lego, sæckr xij aurum. Græfuer
    lœysingia í hauldmanz lego, sæckr iij mörkum.

    And next to the churchyard wall shall be buried the servants
    (thralls) of a man, and those who are cast upon the sea shore
    and whose hair is cut in the Norwegian manner. If a man buries
    a thrall in the burying-place of a frialsgiaf, he is liable to
    pay 6 aurar. If a man buries a frialsgiaf in the burial-place of
    a leysing, he is liable to pay 12 aurar. If he buries a leysing
    in the burial-place of a hauld, he is liable to pay three marks.
    (Borgarthing law 13.)

[Sidenote: The two classes of leysings or freedmen before and after
making ‘freedom ale.’]

Referring to the gradations of _rett_, it will be seen that there are
apparently two classes of leysings, whose social condition was next above
the thrall at the bottom of the ladder.

This was first made clear by Konrad von Maurer. The thrall who by
purchase or by gift had been made a ‘freedman’ (frials-giafi) had only
taken the first step towards even that limited amount of freedom which
belonged to the leysing. Another step had to be made good before he
became a full leysing. And the step was accomplished by the ceremony of
‘making his freedom ale.’

The leysing before ‘making his freedom ale’ was still so far the property
of his master that his children did not inherit his goods. They belonged
to his master.

    Nú ero brœðr tveir fœdder upp ánauðgir at eins mannz, oc ero
    þeir bæðe brœðr oc fostbrœðr, oc leysasc þeir undan drótne
    sínum, oc firrasc eigi fóstr, eigu saman verc oc orco, þá kemr
    hvartveggia þeirra til annars arfs. Börn þeirra koma eigi til,
    nema þeir geri frælsis öl sitt.

    If two brothers are brought up as thralls at one man’s house,
    and are both brothers and foster brothers, and they are freed by
    their master and continue in fosterage, and have their work and
    employment together, then either of them inherits from the other.
    _Their children do not inherit from them unless they make their
    freedom ale._ (Gulathing, 65.)

This passage shows that the link of blood-relationship between two
brothers and foster brothers, by reason of their being fostered together,
in the case of thralls was recognised before that between parent and
child. It was the fosterage in this case which had forged the link.
Blood-relationship in thraldom counted for nothing.

[Sidenote: The ‘making a freedom ale,’ first step to freedom.]

The ceremony of ‘making a freedom ale’ is thus described, in the two laws.

    Nú vill leysingi ráða kaupum sínum oc kvánföngum, þá scal hann
    gera frælsis öl sitt, þriggja sálda öl hit minzta, oc bióða
    skapdrótne hans til með váttom, oc bióða eigi sökunautum hans
    til, ok sissa hánom í öndvege, oc leggia .vi. aura í skáler
    hinn fysta eftan, oc bióða hánom leysings aura. Nu ef hann tecr
    við, þá er vel. En ef hann gefr upp, þá er sem golldet sé.

    (Gulathing law 62.) If a leysing wishes to have control of his
    bargains and his marriage, he shall make his freedom ale out of
    at least 3 sievefuls of malt and invite his master to it, in the
    hearing of witnesses, and not invite his master’s foes, and seat
    him in the high seat, and lay 6 aurar in the scales the first
    evening [of the banquet], and offer him the ‘leysing’s fee.’ If
    he takes it, that is well. If he remits the sum, it is as if it
    had been paid.

    Ef þræll kemr á iörð eða býr, þá scal hann gera frelsis öl sitt,
    hverr maðr níu mæla öl, oc scera á veðr. Ætborinn maðr scal höfuð
    afscera, en scapdróttinn hans scal taca hálslausn af hálse honum.
    Nú vill scapdróttinn hans leyfa honum at gera frelsis öl sitt, þá
    scal hann beiða hann með vátta .ii. at hann megi gera frelsis
    öl sitt, oc bióða honum með .v. (fimta) mann til öldrs þess
    er hann gerir frelsis öl sitt […] þá scal hann þó gera, oc láta
    öndvegi hans oc cono hans kyrt liggia.

    (Frostathing law IX. 12.) If a thrall takes up land or sets up
    house, he shall make his freedom ale, every man of 9 mælar [=
    1½ sievefuls of malt], and kill a wether. A freeborn man shall
    cut off its head, and his master shall take the ‘neck-release’
    off his neck. If his master will allow him to make his freedom
    ale, he shall ask his leave to make it, in the hearing of two
    witnesses, and invite him and four with him to his freedom ale.
    [If they do not come] yet he shall make the ale and let the high
    seat for his master and his master’s wife stand empty.

A master might dispense with this formality. He might take his thrall to
church, or ‘seat him on the kist,’ and if then he proceeded formally to
‘free him from all debts and dues’ the leysing need not ‘make his freedom
ale.’ (G. 61.)

[Sidenote: Social status of the leysing.]

Now let us see what change in social position and rights the ceremony of
‘making freedom ale’ or its substitute produced.

The leysing was still unfree in the sense that he could not leave his
master. The following is from the Gulathing law (67).

    Nú ferr leysingi ór fylki firi útan ráð dróttins síns, oc aflar
    sér þar fiár æða kaupa, þá scal scapdróttenn fara efter með
    vátta. Ef hann vill aftr fara, þá er vel. En ef hann vill eigi
    aptr fara, þá leiði hann vitni á hönd hánom at hann er leysingi
    hanns, oc fœri hann aptr hvárt sem hann vill lausan æða bundinn,
    oc setia hann í sess hinn sama, þar sem hann var fyrr.

    Now a leysing leaves the district without the advice [or will] of
    his master, and earns property or concludes bargains; then his
    master shall go after him with witnesses. If he is willing to
    come back, that is well. If he is not willing, he [the master]
    shall call witnesses that he is his leysing, and bring him back,
    fettered or unfettered, as he likes, and set him in the same seat
    that he had formerly.

But, on the other side, the master might not sell even a thrall ‘out of
the land’ (F. XI. 20); so that probably he could not turn his leysing
adrift at his pleasure.

The leysing remained under _thyrmsl_ towards his master, or obligations
involving personal loyalty and duty, and upon any breach of these, he
could be put back into thraldom.

    En ef hann gerer einnhvern lut þeirra, þa scal hann fara aftr í
    sess hinn sama er hann var fyrr, oc leysasc þeðan verðaurum. Fé
    sínu hever hann oc firigort.

    Should he make himself guilty of any of these things, he shall go
    back to the seat in which he sat formerly, and buy himself free
    out of it with money to his value. And his property is forfeited.
    (G. 66.)

[Sidenote: The leysing must now keep his children.]

The reason assigned in a clause above quoted for the desire to ‘make
freedom ale’ was that the leysing might ‘have control of his bargains and
his marriage.’ He gained, therefore, both as regards property and also in
family rights.

In Gulathing law (63) is described what happened on his marriage. If he
marries a kin-born (_ætt-borin_) woman, and they afterwards separate, all
the children go with her. He, not being kin-born, has no kindred. She
being kin-born, her kindred have rights over her and obligations as to
her children.

    En ef hon verðr fyrr dauð, þá scolo börn öll hverva til faður
    síns aftr, oc eta fé hans meðan þat er til; en þá er þat er allt
    etet, þá scolu börn öll aftr hverva í hit betra kyn, en hann
    undir scapdrótten sínn.

    If she die first, all the children shall go back to their father,
    and eat his property so long as it lasts, and after it is all
    eaten up, all the children shall go back to the better kin, _and
    he back to his master_.

If one leysing marries another, and both father and mother have made
their freedom ale, the children of the marriage inherit from both. This
is the beginning of the rights to inherit. But it is accompanied by the
obligation to keep the children, who are no longer thralls of the master
but leysings like their parents.

What happens, then, if the parents fall into poverty and cannot keep
their children? Is the master to keep them or are they to starve?

    En ef þau verða at þrotom, þá ero þat grafgangsmenn. Scal grava
    gröf í kirkiugarðe, oc setia þau þar í, oc láta þar deyia. Take
    skapdróttenn þat ór er lengst livir, oc fœðe þat síðan.

    (63) If they come to extreme want, they are _grafgangsmenn_. A
    grave shall be dug in the churchyard, and they shall be put into
    it and left to die there. The master shall take out the one who
    lives the longest, and feed that one thereafter.[184]

But it is not all leysing families which come to this gruesome pass.
It may be presumed that the leysing who had ‘made his freedom ale’ and
married and could make his own bargains and keep what property he and his
wife could accumulate was mostly prosperous.

[Sidenote: Children could inherit from him, but no other kin.]

In clause 106 the rules as to ‘leysing inheritance’ are described. If
the leysing who ‘made his freedom ale’ afterwards had children they
could inherit. But he had no other kin who could inherit: so if he died
childless the master took the property. As generation after generation
passed and a wider kindred was formed, any one of his (the leysing’s) kin
took in preference to the master and his descendants. But the rights or
chances of inheritance on the side of the master’s family did not cease
for nine generations from the first leysing who had ‘made his freedom
ale.’ So that if a leysing even of the eighth generation died without
kin the inheritance in this extreme case went to the descendants of the
master of the first leysing ‘to the ninth knee’ rather than pass by
failure of kin to the king.

    Leysings erfð … scal taca til niunda knés, fyrr en undir konong
    gange. Ðegar leysings sun tecr efter faður sínn, þá take hverr
    efter annan. Nú verðr þar aldauða arfr í leysings kyni, oc er
    engi sá maðr er þar er í erfða tale við hann er andaðr er ór
    leysings kyninu, þá scal hinn er ór skapdróttens kvísl er, taca
    til níunda knés fyrr en undir konong gange, þó at sá sé hinn átte
    er andaðr er frá leysingjanom.

    (G. c. 106.) A leysing’s inheritance shall be taken to the ninth
    knee before it falls to the king. When a leysing’s son takes
    after his father, then let one take after the other. If in a
    leysing’s kin there comes to be an ‘all-dead’ inheritance, and no
    one has inheritance-right after the deceased man of the leysing’s
    kin, then one of his master’s kin shall take to the ninth knee
    before it falls to the king, even though the deceased man be the
    eighth from the leysing.

[Sidenote: Further steps into freedom at stages of three generations.]

Thus we seem to see the family of the leysing who had ‘made his freedom
ale’ gradually growing up into a kindred in successive stages until in
the ninth generation a kindred of leysings had been fully formed and
might be very numerous.

In the corresponding clause in the Frostathing law (IX. 11) further
details are mentioned. If not previously purchased by agreement with
the master, the ‘_thyrmsl_’ came to an end after four generations: that
is, the fifth generation was free from them. They lasted, therefore,
over the first four generations from the original leysing to his
great-grandchildren. For these four generations the leysing and his
descendants were the leysings of the master and his descendants.

[Sidenote: At the ninth generation the lordship over them ceases.]

Then the clause goes on to show that the first leysing having ‘made his
freedom ale’ shall take inheritance only of his son and daughter, and
of his own freedman. The sons of this leysing take inheritance from six
persons, viz. father, mother, sons, daughters, brothers, sisters, and,
seventhly, from any freedman of their own.

    Svá scal sunr leysingia taca oc sunarsunr oc þess sunr … oc svá
    dóttir oc systir sem sunr oc bróðir, ef þeir ero eigi til. Oc svá
    scal hvárt þeirra hyggia fyrir öðru.

    So shall the son of a leysing take, and his son’s son [grandson]
    and _his_ son [great-grandson] … and daughter and sister like son
    and brother, if there are none of these. Each _of these shall
    provide for the other_.

Failing these leysing claimants, the inheritance rights revert to the
master to the ninth knee, and, it is added, ‘_also providing for these if
needed_.’

[Sidenote: Analogy of the Cymric gwely.]

There is here something very much like the Cymric gwely or family of
descendants of a great-grandfather with rights of maintenance under the
rules of ‘_tir gwelyauc_’ and mutual liability. Until a kindred has been
formed the master’s obligation to provide for the leysing remains, and it
does not cease altogether until the kindred is complete. In the meantime
as the kindred is formed its members are mutually liable for each other’s
maintenance. In this respect within the group of descendants of a
great-grandfather there is solidarity for maintenance as well as wergeld.

[Sidenote: The lordship over them ceases when a full kindred is formed.]

We are dealing evidently here with a family of leysings growing into
a kindred, as under Cymric custom the family of the Aillt and Alltud
grew into a kindred. During all these four generations the family were
leysings with a _rett_ of six ores. But the fifth generation seems
to rise into a second grade of social rank and to attain the rank of
‘_leysings’ sons_’ with a _rett_ of eight ores. And further in another
four generations, those of the ninth generation again rise in social rank
and seem to become _árborinn_ or _ættborinn_ men, _i.e._ _men born in a
kindred_, with a _rett_ of sixteen ores. They can now boast of a full
leysing kindred. Their father, grandfather, and great-grandfather were
born in a kindred, and they have now full rights of inheritance. The
master and his descendants have no further hold on them or obligation for
their maintenance. Any lapsed inheritance now goes direct to the king.

The _árborinn_ or _ættborinn_ man, therefore, seems at last, at the
moment when a full kindred of his own has risen up to swear for him and
protect him by feud or wergeld, to have become clear from any claims
on the master’s side. And accordingly if any claim be set up he has to
prove his freedom by witnesses ‘that he can count four of his forefathers
as _árborinn_ men and himself the fifth.’ That is, he shows that his
great-grandfather was a man with an _ætt_ or kindred. If he can prove
this he is free from any claim in regard to his leysing descent.

    En ef sá callaz árborinn er fyrir söc verðr, þá teli hann fióra
    langfeðr sína til árborinna manna, en siálfr hann hinn fimta, oc
    hafi til þess .ii. búanda vitni árborinna. En ef hann er svá
    liðlauss at hann fær þat eigi, oc hefir þó þessa vörn fyrir sér,
    þá sanni ætt sína árborna með guðscírslum. En ef hann verðr scírr
    með iárne eða vitnisburð, þá gialldi hinn honum fulrétti, en
    biscopi eiða sect. En ef hann fær sic eigi scírt, þá hefir hann
    fyrirgort fé sínu öllu við scapdróttin, oc liggia á .iii. mercr
    sylfrmetnar, nema hann launi af sér. Oc svá um vánar mann.

    (Frostathing, IX. 10.) But if the accused calls himself _árborinn_
    _let him reckon up four of his forefathers as árborinn men_, he
    being the fifth himself, and have for it the evidence of two
    árborinn householders. But if he is so supportless that he does
    not get this, and yet sets up this defence [viz. that he is
    árborinn], then he shall prove his kin to be árborinn by ordeal.
    And if he is cleared by iron or evidence, the other shall pay him
    full atonement, and to the bishop an oath fine. If he cannot
    clear himself, he has forfeited all his property to his master,
    and is liable to pay three marks in silver, unless he work it
    off. The same applies to a _vánar mann_ [man of hope, _i.e._ the
    higher class of leysing].

So far the conclusions drawn from the laws respecting the leysing do not
vary much from the views expounded by Dr. Konrad von Maurer in his ‘Die
Freigelassenen nach altnorwegischem Rechte,’ and confirmed by so great an
authority they can hardly have wandered very far from the truth.

The theory of this gradual growth of the kindred of the leysing is so
nearly analogous to that of the Cymric alltud, and the Irish fuidhir, and
at the same time so logical, when the tribal theory of blood-relationship
is applied to it, that we cannot be dealing with the fanciful theory of
legal enthusiasts which never had an actual place in practical life.
Behind all this imperfect description, in the laws, of social conditions
and landholding there was, no doubt, a reality, the features of which may
be difficult to grasp from our modern point of view, but which become, I
think, fairly intelligible when approached from a tribal point of view.

[Sidenote: The leysings have become a family group, and the descendants
of the master also.]

When we consider that in the course of the successive generations, during
which some kind of shadowy lordship seems to have prevailed over the
family of leysings, they must generally have multiplied into considerable
numbers, and that the descendants of the master of the leysing ‘who
made freedom ale’ must during the same period also have multiplied; and
further when we consider that the descendants of the leysing were in
some sense, it would seem, _adscripti glebæ_, we have to recognise not
merely a relation between individuals but something approaching to a
relation between two classes, tribesmen and non-tribesmen, the one in
some sense in a kind of servitude to the other. In other words, we have
to conceive of a kindred of half-free tenants, living under the joint
shadowy lordship of a kindred of fully-free men, probably in some tribal
sense landowners, with complicated tribal rights among themselves.

It would seem that this semi-subject class of leysings were mostly the
descendants of a class of thralls, it may be perhaps in origin some
conquered race, members of which had gradually grown into leysings and
were now gradually in successive stages growing into freemen.

Before we can fully understand this process we must examine the other
side of the question and learn what was the position of the fully-free
class by whom this more or less shadowy lordship over the leysing class
was exercised. In the meantime it may be remarked that the shadowy
lordship of one class or tribe over another finds parallels enough
in Indian experience, and that, coming nearer home, we have only to
remember the petty exactions of the cadets of French noble families upon
a peasantry over whom their family, or the feudal head of it, held a
quasi-manorial lordship.


IV. THE CLASSES OF FREE MEN AND THEIR RELATION TO LAND.

[Sidenote: The odalman or hauld.]

Following again the clue of the statements of the ‘personal right’ of the
different classes, and commencing with the _bónde_ or ordinary freeman
settled upon land and presumably having in some sense, as in Wales,
originally tribal rights to share in the land or its use, the next class
which claims attention above the bónde is the _odalman_ or odalborn man
or hauld, whose wergeld of 96 or 100 cows was taken as that of the full
and typical freeman.

Now, in the Frostathing law there is a statement as follows:--

    Engum manni verðr iörð at óðali fyrr en .iij. langfeðr hafa
    átt, oc kemr undir hinn .iiij. samfleytt.

    (XII. 4.) No man’s land becomes an odal to him until _three
    forefathers_ have owned it and it falls to the fourth in unbroken
    succession.

And again in the Gulathing law is the following:--

    Nu scal þær iarðer telia er óðrlom scolo fylgia. Sú er ein er ave
    hever ava leift.

    (270.) Now shall the lands be told that are odal. The first is
    the one which _grandfather_ has left to _grandfather_.

[Sidenote: His grandfather’s grandfather had the land.]

The odalborn man inherits land from his grandfather’s grandfather. The
son of an odalman who claims odal as odal by inheritance counts four or
five forefathers who had the land before him.

In Gulathing law c. 266 is a description of the mode of settling a claim
as to land. It describes the sitting of the open-air court, from which
both bauggildsmen and nefgildsmen and relations by marriage of the
claimant are excluded as ineligible, the calling of witnesses all to be
odalborn men of the same fylki as that in which the land lies, and so
on. The validity of the claim is made to rest according to this statement
upon the ability to count up _five forefathers who have possessed that
land, while the sixth possessed it both by ownership and by odal_.

    Þeir scolo telia til langfeðra sinna .v. er átt hava, en sá
    hinn sétti er bæðe átte at eign oc at óðrle.

    (266.) They [the men who claim odal] shall count five of their
    forefathers who have owned [the land] and the sixth having it
    both in ownership and odal.

[Sidenote: The odalmen were of full kindred on the land.]

If, then, at the time of the laws we look at the class of landowners
who were prominent as odalmen or haulds--typical men with wergelds
originally of 100 cows--they were not only men of full _kindred_ whose
full pedigree of freedom went back the necessary nine generations, but
their grandfather’s grandfather must have possessed the land. The sixth
generation of owners were the first to hold land _both in ownership and
odal_.

The steps in the rank of Norse aristocracy were marked, therefore, as in
the case of the more dependent class, by the number of the generations of
ancestors through whom they could claim their landed rights.

[Sidenote: The odal land was held by a family and subject to family
divisions.]

Nor in the case of the odalborn man any more than in the case of the
leysing must we look upon the odalman or hauld merely as a detached
individual landowner owning his own separate estate like a modern country
squire. Such a conception would be far indeed from the truth. It must
be remembered that holdings in odal were subject to rules of division.
Moreover, indications appear in the laws that the division was not merely
one between the heirs of a single holder, but something more like what
took place between the group of kinsmen in the case of the Cymric gwely
and ‘_tir gueliauc_.’ How otherwise can this clause be read?

    _Um óðals iarðer._ Nú scal þær iarðer telia er óðrlom scolo
    fylgia. Sú er ein er ave hefir ava leift. Sú er önnur er gollden
    er í mannsgiölld … þær scolo óðrlom fylgia, oc allar þær er í
    óðals skipti hava komet með bræðrom oc með frændom þeim [_sic_].
    Allar aðrar aurum.

    (G. 270.) _Of odal lands._ Now the lands shall be told which _are
    odal_. One is that left by grandfather to grandfather. Another
    is that paid as wergeld.… These shall be odal and all those
    _which have come under odal division between brothers and their
    kinsmen_. All other lands shall be counted _aurar_ [money].

[Sidenote: The odal-sharers must consent to a sale of odal land.]

At the time of the laws owners of odal had, it appears, certain powers of
selling their odal, but even then it was not an uncontrolled right of a
man to do what he would with his own. His first act must be to ‘go to the
“thing” in autumn and offer it to his _odal-sharers_’ (_odalsnautr_, one
who has odal-right to land in common with others). (G. 276.)

If a man buys without its having been thus offered, then ‘the
odal-sharers may break that bargain’ (G. 277). Even when the sale and
purchase have been made by the public ceremony of _skeyting_, _i.e._ by
taking earth from the four corners of the hearth and from under the ‘high
seat,’ and where field and meadow meet, and with witnesses at the ‘thing’
(G. 292), the _odal-sharers_ of the seller have the right to redeem it
within a twelvemonth (G. 278).

[Sidenote: The odal-sharers have rights to keep it in the family and to
prevent its passing to females.]

Take, again, the case of two brothers dividing odal, and observe how
careful law and custom had been to prevent either of the odal-shares
going out of the family. The odal rights between them were maintained
for as many generations as must pass before the shares could be united
again by a lawful marriage between a son of one family and a daughter of
the other (G. 282). One is tempted to say that here again there may be
something very much like the Cymric gwely and to suppose that marriage
was forbidden within the gwely, _e.g._ between second cousins, and that
the odal sharing continued so long as the gwely held together.

    Nú skipta brœðr tveir óðrlom sín á milli, þá scal þingat hverva í
    þá kvísl óðol, sem loten ero, bæði at boðom oc at ábúð, bióða því
    at eins í aðra kvisl ef þá sœker þrot æða aldauða arfr verðe. En
    eigi skiliasc óðol með þeim at helldr fyrr en hvártveggia má eiga
    dottor annars.

    If two brothers divide their óðals between them, the óðals shall
    pass into the hands of the branch which receives them by lot, in
    respect both of right of redemption and of occupation; they shall
    only be offered to the other branch if this one comes to utter
    poverty, or the inheritance is left without a legal heir. Yet the
    latter does not lose its right to the óðals until each of the two
    can marry the other’s daughter.

If the family of one of the brothers sinks into utter poverty or is left
without a legal heir, the other family have the right of redemption and
occupancy; and yet the poverty-stricken or heirless branch does not lose
its rights to the odal altogether. There is still the chance that its
rights may be restored when a son on each side can marry a daughter of
the other side.

There is a further clause in the Gulathing law which provides that when
land falls to a woman the men of the kindred, ‘if their relationship be
so close as to be _nefgildi_ or _bauggildi_’--that is, as we have seen,
paternal and maternal relations descendants of great-grandparents--have
a right to redeem it from their kinswoman at one-fifth less than its
value, ‘paying one half in gold and silver and the rest in thralls and
cattle.’ The men then keep the odal and their kinswoman ‘keeps the
aurar.’ Even if odal has passed ‘three times under the spindle’ it comes
back at last to the male kinsmen (275).

    Nú verðr kona baugrygr, verðr hon bæðe arva óðals oc aura, oc á
    engi maðr undan henne at leysa. Nú ero þær konor er óðals konur
    ero, oc óðrlom scolo fylgia, dótter oc systir oc faður systir oc
    bróðor dótter oc sunar dótter. Þær ero baugrygiar tvær, dótter oc
    syster. Þær scolo baugum bœta oc svá taca sem karlmenn, oc svá
    eigu þær boð á iörðum samt sem karlar. Nú ero þær arvar faður
    síns. Nú elr önnur dóttor eina, en önnur sun einn, þá scal sunr
    leysa undan frendkonom sínum sem lög ero til. En ef enn skiptizt
    um, oc elr hon sun en þeir dœtr, þá scolo þeir leysa undan þeim
    slícum aurum sem hann leysti undan mœðr þeirra, oc scal þá liggia
    iörð kyrr þar sem komin er. Þá er iörð komen þrysvar undir snúð
    oc undir snælldo.

    If a woman is a _baugrygr_ [an only daughter who in default of
    heirs male could receive and pay wergeld] she inherits both
    odal and aurar and no man requires to redeem it from her. The
    women who are odalwomen and take odal are daughter and sister
    and father’s sister and brother’s daughter and son’s daughter.
    Daughter and sister are two _baugrygiar_. They shall pay and
    take _baugar_ as males, and they may redeem land as men. Now if
    they are their father’s heirs, and one of them gives birth to a
    daughter and the other to a son, the son shall redeem [the odal]
    from his kinswomen as the law is. But if things turn round again,
    and she has a son and they [masc.] have daughters, they [masc.]
    shall redeem it from them [_i.e._ from the daughters] for the
    same payment by which he redeemed it from their mother, and the
    land shall then remain where it is. Then the land has passed
    three times under the spindle.

[Sidenote: These are marks of early family ownership.]

Now when these remarkable survivals of tribal custom are found still
remaining in the laws as to odal and odal-sharers and the right of
kinsmen who would have to pay wergeld to redeem odal, so that it may be
kept within the ring of odal-sharers, they cannot be regarded as laws
framed to meet the needs of individual landownership. They come down
in the laws as survivals of family ownership under tribal custom, the
principles of which are by no means wholly obsolete, even though society
may have passed onwards some stages towards individual landownership of
the more modern type.

[Sidenote: The solidarity of the family shown both by odal-sharing and
wergelds.]

And when we consider the solidarity of kindreds, as regards the payment
of wergelds on the one hand, and the corresponding solidarity in the
matter of landownership on the other hand, we can hardly fail to
recognise that the two are connected--that both spring from a tribal
principle which lies at the root of tribal polity. The solidarity of
kindreds, taken together with the liability of individuals to take their
share in the payments for which their kindred is responsible, corresponds
to the solidarity of odal landholding, taken together with the individual
rights of the odal-sharers. Unless every one in a kindred had his
recognised tribal rights on the land, unless he were possessed of cattle
and rights of grazing for their maintenance, how could he pay his quota
of cattle to the hauld’s wergeld of 100 cows? The two things seem to hang
together as in the Cymric instance, and the one makes the other possible.


V. THE LEX SCANIA ANTIQUA.

The ‘Lex Scania Antiqua’ might perhaps be selected as fairly typical of
Danish[185] ancient custom, as the Gulathing has been taken as typical
of Norse custom. But apart from this it contains some chapters which seem
to throw further light on odal and family holding, and so can hardly be
overlooked in this inquiry.

[Sidenote: The Latin and old Danish versions of Scanian law.]

There are two versions of the Scanian Law, one in Latin and the other in
old Danish. They differ considerably and are certainly not translations
one of the other, though an older text may have been the foundation of
them both.

They both refer to recently made modifications of local custom which fix
their date to the early years of the thirteenth century.

The author of the Latin text was the Archbishop of Lund (A.D. 1206-1215),
and from the use made by him of legal terms borrowed more or less from
Roman law it may be gathered that Scanian custom required for him more
explanation than the Danish writer deemed it necessary to give.[186]

The rules with regard to wergelds cannot be quoted as representing
unmodified ancient custom. They avowedly are the result of modifications
made to remedy evils which had arisen partly, no doubt, from the gradual
loosening of the ties of kindred.

In the same way the clauses as to property represent the results of
long-continued conflict between ancient rules of family holding and
gradual innovations in the direction of individual ownership. In this
they resemble the Lex Salica. Still if family holdings more or less on
the lines of the Cymric gwely, or the Salic alod, had once been the
prevalent form of occupation, even new rules making alterations could
hardly fail to reveal traces of older custom. The special value to this
inquiry of the ‘Lex Scania antiqua’ is that it does so.

Disguised as some of these traces may be in the Latin text, under Roman
phraseology, with the Danish version at hand it ought not to be difficult
to recognise the meaning of the facts disclosed.

[Sidenote: When there was arrangement on marriage widow took half of
their joint property if no children.]

The first chapter relates to the rights of a wife surviving her husband
when there are no children of the marriage.

    Omnia que in hereditate sunt mobilia, vel se moventia,[187]
    vel immobilia, precio tempore matrimonii comparata, equis sunt
    partibus dividenda, medietate heredes defuncti proximos cum
    prediis que propria ipsius fuerant et uxorem altera cum suis
    prediis contingente.…

    All things in the _hereditas_ which are moveable or cattle
    or immoveable, brought in by value fixed at the time of the
    marriage, are to be divided in equal parts, one part appertaining
    to the next heirs of the deceased [husband] with the lands which
    were his own, and the other part to the wife together with her
    lands.

This clause may very possibly represent an extension of the rights of
a childless widow beyond what tribal custom may have originally given
her. But certainly the fact that under Scanian law the childless widow
was entitled to half of what by compact at the time of the marriage had
become the joint property of husband and wife, while the other half
went to the husband’s next heirs, is good evidence that marriage was
by no means a surrender of the wife and her property once for all into
the power of the husband and his family. And evidence of the accord of
Scandinavian with other tribal custom on this point is not without value.

It may be observed, however, that in the case mentioned there had been
something like a compact or valuation of the property brought under
the marriage arrangement at the time of the marriage. The result might
therefore have been different if no special compact had been made. The
inference might well be that the childless widow in that case would not
have been allowed to take her half share with her away from her husband’s
kindred.

[Sidenote: Family holding vested in the grandfather as _paterfamilias_.]

Chapter III. refers again to a wife’s property and adds important
information. It brings before us a family group with something like
a family holding. And it becomes intelligible only, I think, when
approached from this point of view.

Into this family group a wife has been brought apparently without the
special ‘definition’ or arrangement. There are also children of the
marriage. And the question asked in the heading of the Latin text is,
what shares the grandchildren take on their father’s death, not in their
parent’s property, but in the property of the grandfather.

The grandfather is the head of the family group. In the Latin version he
is elsewhere styled the _paterfamilias_ and in this clause his sons are
_filiifamilias_.

In the Danish version the family group is simply that of an ordinary
_bonde_ and the family character of the holding is taken for granted as
not needing special mention or explanation.

The chapter is as follows (divided into sections for convenience in
comparison of the Latin and Danish texts):--

    De bonis avitis que portio contingat nepotes post obitum
    filiifamilias.

    Of the grandfather’s property what portion goes to the
    grandchildren on the death of a _filiusfamilias_.

    (1) Filiifamilias[188] in sacris paternis cum uxore constituti,
    si sine diffinicione certe quantitatis bonis patris addiderit
    bona, que ipse habuit, cum uxore, quotcumque fuerint filii de
    communi substantia, etiam prediorum post contractas nuptias
    comparatorum, cum avo et aliis consortibus post obitum patris
    viriles et equales accipient porciones, (2) per priorem gradum ab
    aliis prediis excludendi. (3) Si vero, in mansione patris, bona,
    que habuit cum uxore, fuerunt diffinita, illa sola, si vivente
    avo pater obierit, filii, quotcumque fuerint, obtinebunt.

    (1) If a _filiusfamilias_ established with his wife in the
    paternal rites shall, without definition of the exact quantity,
    have added to property of his father property which he himself
    had with his wife; then, however many sons there may be, they
    shall, after the death of their father, receive _equal shares
    per capita with the grandfather and other co-sharers_ in the
    common substance even of lands acquired after the marriage was
    contracted, (2) they having to be excluded from other lands by
    the prior grade. (3) But if in the _mansio_ of his father the
    property which he had with his wife, had been defined, _that
    alone_, if the grandfather was alive when the father died, shall
    go to the sons, however many they may be.

The Danish text (I. 5) is as follows:--

    Vm bondæ sun förœr kono sina j bo mœth faþœr sinum.

    If a bonde’s son brings his wife into the house with his father.

    (1) Far bondæ sön konu oc förær hanæ j bo mæth faþur sinum, oc
    aflær barn wiþær hana oc læghs æy fælegh theræ i mællin, um tha
    dör bondans sön, tha taki all hans börn fullan lot æftir theræ
    faþær æm wæl j köpæ iorth sum j bolfæ. (2) Æn af hans fæthrinis
    iortho fa the æy wattæ mer æn han will giuæ them. (3) læghs
    fælagh, tha fa the æy mer æn han atte j bo.

    (1) If a bonde’s son gets a wife and brings her into the house
    with his father and begets a child with her and no partnership
    is made between them,[189] if the bonde’s son dies, then let
    all his children take a full lot after their father as well in
    land purchased as in moveables. (2) But of his [the bonde’s]
    father’s lands they get not a whit more than he will give them.
    (3) If partnership is made, then take they no more than he [their
    father] owned in the house.

[Sidenote: If no arrangement on marriage wife’s property merged into the
family stock.]

This clause, in both the Latin and the Danish version, confirms the
inference from the previous one, that there was a difference of
destination as to the property of husband and wife according to whether
it had or had not been ‘defined’ and so put in partnership as joint
property of the husband and wife separately from the property of the
family group represented by the grandfather.

If not so defined, it became apparently under ancient custom part of the
common family property and so divisible after the grandfather’s death
among all the _consortes_ instead of going solely to the children of the
marriage.

The clause pictures for us the family group as bound together by
paternal rites (_sacris paternis_). The grandfather is alive and is the
_paterfamilias_. A son who is a _filiusfamilias_ (_i.e._, as we shall
see presently, not an emancipated son) has married and brought into
the _mansio_, or family homestead of the grandfather, property which
he had with his wife. This, not having been ‘defined’ on marriage, so
as to keep it separate, has become, in the phrase of the Latin text,
‘added to the property of the grandfather.’ The husband has died leaving
several sons, it matters not how many. The question is, what share
these grandsons are to take in the property which their father had
with their mother, which, for want of ‘definition,’ has become added
to the grandfather’s property, or, in other words, become part of the
‘_substantia communis_.’

[Sidenote: There was no succession by representation to a deceased parent
during the grandfather’s lifetime.]

The answer is that the parents’ property does not go exclusively to
their children as it would have done if it had been defined and separate
property. It has become merged in the family property, and there is
no sharing of this till the grandfather’s death. But apparently by a
compromise, due probably to recent legislation, they are allowed on their
father’s death, according to the Latin text, to take equal shares in his
property _per capita_ ‘with the grandfather and other _consortes_,’ or,
according to the Danish text, a ‘full lot’ in it. We are not told who
were the ‘_consortes_’ with whom and the grandfather it was to be shared.
The _consortes_, whether uncles or cousins or both, were the co-sharers
in the ‘_communis substantia_’ of the family holding.

In the final paragraph of the clause both texts give the alternative
rule applying to cases, probably the most frequent, in which proper
‘definition’ of the wife’s property had been made on the marriage. And
the rule is stated to be that the property so defined and made joint or
partnership property on the marriage, and that alone (_illa sola_), would
go to the children of the marriage at their father’s death during the
life of the grandfather. According to the Latin text, they were excluded
from the other family property ‘by the prior grade.’ As the Danish
version puts it: ‘not a whit of the other property would they get except
what the grandfather chose to give them.’

That this is the true meaning of these clauses is confirmed by other
chapters.

[Sidenote: Permission to the grandfather to give succession to a deceased
son’s children.]

Chapter XVI. is headed: ‘How much may be conferred by a father upon the
sons of a deceased son during the lives of the other sons, their uncles.’
The text is as follows:--

    Licet cuique post mortem filii quantum ipsi deberetur si viveret,
    ejus filio nepoti conferre.

    It is lawful to every one after the death of a son to confer upon
    a grandson, the son of that son, whatever would have been due to
    the son had he lived.

This seems to be a special permission to the grandfather during his life
to mitigate the injustice of the customary rule excluding grandchildren
from succession by representation in their deceased parent’s property.

If under Scanian custom the children of a dead _filiusfamilias_ had
succeeded by right to their father’s property, this special permission
would not have been needed. But it seems to be clear that no such right
of succession was recognised by ancient custom.

Chapter XI. opens with the following general statement, there being in
this case no question of a marriage or a wife’s property.

[Sidenote: Otherwise no succession given by custom.]

    Patre superstite defunctus filiusfamilias nullum habet, ac si
    nunquam fuisset genitus, successorem.

    The father surviving, the dead _filiusfamilias_ has no successor,
    as if he had never been born.

This seems to make it clear that, the grandfather being alive, the
grandchildren took by right under ancient custom no share in their
deceased father’s property. It was simply merged in the family holding,
and they must wait for their shares in it along with the other co-sharers
after the grandfather’s death.

The growing feeling of the injustice of this from the individual point
of view was probably the reason, not only why the permission in Chapter
XVI. was given, but also why, following the example of Roman law, the
emancipation of sons was admitted.

Chapter XI. proceeds, after the initial sentence above quoted, to tell
what happened in the case of the death of an emancipated son dying
without children. But this does not concern us.

[Sidenote: Both in Norse and Scanian custom originally on a son’s death
his share in the odal merged in the common stock.]

It may be well before passing from the consideration of these clauses of
the Scanian law to bring into notice a short isolated clause from the
Gulathing law, which seems to accord with them, and so to connect the
Scanian rules of family holdings with somewhat similar rules as to the
Norse odal-sharing. The denial of the right of representation in both
Scanian and Norse ancient custom suggests that a common principle may
underlie the custom in both cases.

The clause of the Gulathing law (294) is as follows:--

    Nu ero brœðr tveir oc andast annar fyrr en faðer þeirra oc livir
    sunr efter hinn dauða. Þa scal hann þann lut leysa oðrla at
    fimtungs falla, undan faður brœðr sinum, sem faður hans stoð til
    efter faður sinn. En eigi ma hann fyrr leysa en faður faðer hans
    er andaðr.

    Now there are two brothers and one of them dies before their
    father, and a son lives after his death. He shall redeem from his
    father’s brother, at one fifth less, that part of the odal to
    which his father was expectant heir after his father. But he may
    not redeem it till his father’s father be dead.

In this case, as before, there are living a grandfather and a son and a
grandson (son of a deceased son). The share which the deceased son as
coheir with his brother might at first sight be expected to take in the
grandfather’s odal does not go directly to the grandson. By apparently a
new law he has permission after the grandfather’s death to redeem it from
his uncle at one fifth less than its value.

This can only be explained upon the principle that under ancient
Norse custom the sons of a deceased son would not succeed by right of
representation to their deceased father’s share in the division of the
grandfather’s property. Evidently the right to redeem it from their uncle
was an innovation of later law.[190]

[Sidenote: The new rules to amend tribal custom show what it once was.
Thus the Scanian laws throw light on Norse odal holdings. They were
family holdings.]

These and other innovations may have been the result of a new sense of
justice brought in with Christianity or under the influence of Roman law.
The question for us is the meaning of the ancient custom. And we are
brought back to the point that in so far as the family group more or less
may have resembled the Cymric gwely, and is approached from this point
of view, it must be regarded as the group of descendants of a common
grandfather or great-grandfather, who is, in the Archbishop’s phrase,
the _paterfamilias_. While he is alive the landed rights are vested in
him. On his death his sons take his place with divided or undivided
equal shares, but still as the representative members of the original
gwely or family group. One of them dies, and the question is whether the
surviving brothers ‘of the prior grade’ are to promote into this grade at
once the sons of their deceased brother. Such a course might naturally
be regarded as preferring these nephews to their own sons. The rights
of all the members of the ‘lower grade’ will come in time when all of
the ‘prior grade’ are gone and the grandsons share equally _per capita_
in the family property. In the meantime the sons of deceased parents,
like those whose fathers are alive, must wait. So it may have been under
ancient custom. But in course of time family ties weaken and individual
rights grow stronger in national feeling, as we have seen them everywhere
doing. And then little by little compromises are made. The joint property
of husband and wife, even if not properly ‘defined,’ is recognised in the
Scanian law as belonging to the sons of the marriage to the very limited
extent that they may have equal shares with the other _consortes_ whether
uncles or cousins. The sons of the deceased brother when the grandfather
is dead and division among the brothers comes in question are allowed by
the clause in the Gulathing law to buy back their father’s share in the
odal at a fifth less than its value instead of sharing in it as family
property.

So far the clauses in the Scanian and Gulathing laws considered together
seem to throw light upon the traditional principle on which the rights of
the odal-sharers of the Norse laws may have been founded.

The rules of Cymric custom may not be identical with those of
Scandinavian custom, but we seem to recognise very similar tribal
principles at the root of them both.

       *       *       *       *       *

[Sidenote: The _paterfamilias_ and those in communion with him.]

Finally other clauses in the Scanian law may be alluded to as pointing to
the common liability of the family group, _i.e._ of the _paterfamilias_
and others ‘_in communione_’ with him.

Chapter IX. is as follows:--

    Universos contingit de communi consortio quicquid vel culpa
    amittitur vel industria conquiritur singulorum.

    As regards the common consortium whatever is lost by the fault of
    or acquired by the industry of individuals concerns all.

And in Chapter LXXXVII. it is enacted that if a person denies that he is
in possession of a thing stolen and if afterwards upon scrutiny it is
found in his house, double the value of the thing stolen is to be taken,
‘not only from the portion of the _paterfamilias_, but also from the
common property (_de bonis communibus_), however many there may be with
the _paterfamilias in communione_.’

And the reason stated confirms the prevalence of family holdings of the
kind already mentioned.

The double value is to be taken,

    … non de sola patrisfamilias porcione sed de bonis communibus
    quotcunque fuerint cum patrefamilias in communione. Nam cum omnes
    lucrum respicerent in detentione non est mirum, si dampnum in
    ejusdem rei contingat omnibus restitutione.

    … not from the portion of the paterfamilias alone, but from
    the common property, however many there may be with the
    _paterfamilias in communione_. For since all expect gain from the
    detention [of the thing stolen] it is not strange if all sustain
    loss in its restitution.

The _paterfamilias_ in whose house the stolen property is found is
evidently himself a member of a wider family group with common interests
and liabilities. And the clause goes on to say that the accused must deny
the charge with twelve co-swearers if the thing stolen be worth half a
mark, or submit to the test of the ordeal of hot iron.

[Sidenote: The resort to the ordeal if no co-swearers.]

In Chapter XCIX. the ordeal of hot iron is described as having three
forms: (1) that of walking on twelve red-hot plough-shares; (2) that
called ‘trux iarn,’ applied to cases of theft: _i.e._ carrying an iron
twelve feet and then throwing it into a basin; (3) that of carrying it
nine paces and then casting it down: called, from the throwing, _scuzs
iarn_. After the ordeal the feet or hands, as the case might be, were to
be wrapped in cloth and sealed to prevent fraud, and so to remain till
the sabbath, on which day it should be opened and viewed in order to
ascertain the innocence or guilt of the accused.

This is one of the clauses which fixes the date of the Latin version, for
the ordeal was abolished in A.D. 1215.[191]

On the whole, we may fairly conclude that the Scanian law when regarded
from a tribal point of view affords additional evidence of family
occupation or ownership and of the solidarity of the family group in
Scandinavian society. But at the same time it shows that in Scandinavia,
as elsewhere, family ownership was gradually succumbing to the new rules
of individual ownership.

       *       *       *       *       *

The same process of gradual disintegration of tribal usage is visible
also in the chapters relating to wergelds.

[Sidenote: The Scanian wergeld.]

In Chapter XLIII. it is enacted that the amount to be paid for homicide
is not to exceed 15 marks of silver.

[Sidenote: How it was divided.]

In Chapter XLIV. it is stated that the wergeld is to be divided into
three equal parts, of which each is commonly called a _sal_. And in the
next chapter, ‘De Compositione,’ we are told that before the time of the
last constitution it always lay upon the slayer or his heir to provide
the first portion only from his own property. He might then exact the
second portion from his agnates, and finally the third and last from his
cognates. Then it proceeds to say that, as excessive amounts were levied
by violence upon the kindred, King Canute had laid down certain rules for
the payments. _Inter alia_, it was enacted that of the two thirds falling
on the kindred, both agnates and cognates being computed in their grades
of kinship, the prior grade should always pay twice as much as the grades
behind it.

Further, in Chapter XLVII. it is stated that according to ancient law the
distribution should be so made that each third should be divided again
into sub-thirds, one of which should be paid to the heirs of the slain,
the second to the agnates, and the third to the cognates.

[Sidenote: Later modifications.]

It appears also from Chapter XLV. of the Latin version and s. 84 of the
Danish version that special care had been taken to prevent fraud on the
part of the slayer in claiming the aid of his kinsmen. He was to pay one
‘sal’ of his own payment before calling upon them for their portion,
which was called the _ættæbot_. He then was to collect together his
father’s friends and compute with them what each was to pay. And when
the day for payment came, not a penny was to be paid into the slayer’s
hands till the hour when he paid it over to the slain man’s kindred. Then
they were safe. The same course was to be afterwards adopted as regards
the payments of maternal relations.

The Latin version (Chapter XLV.) proceeds to say that this legislation
not having been successful in extirpating fraud and discouraging murder,
King Waldemar II. (A.D. 1202-1241) enacted that the murderer should be
liable for the whole wergeld (instead of one third). The agnates and
cognates were not to be forced by him to contribute against their will.
Within three days the murderer was publicly to offer satisfaction or be
outlawed, in which case he would be liable to be put to death by any one.
In case, however, of his flight, his relatives, agnates and cognates,
were individually to offer their proper share of two thirds of the
wergeld or be liable to the vengeance of the relatives of the slain, so
that the latter should not be deprived of all satisfaction.

These clauses throw some light on ancient custom, but they are evident
signs of the gradual loosening of the ties of kindred.

[Sidenote: Payment for the servus and libertus.]

In Chapter L. of the Latin version the payment for a _servus_ is fixed at
three marks, and in Chapter LII. the payment for a _libertus_ is fixed at
half that of the freeborn man.

It is difficult to judge how far these are to be taken as the ancient
wergelds of Scanian custom, or whether they had been altered in amount by
changes in the currency or recent legislation.

The wergeld of 15 marks of silver is exactly half of that of the normal
wergeld of the Norse hauld. And yet it does not seem likely that it had
been reduced in amount by recent legislation when it is considered that
under the Norse laws, as we have seen, the tendency seemed to be to add
‘sakauka’ to the ancient wergelds rather than decrease them.

It may be noted also that in a later addition[192] to the Danish version
it is stated that ‘a man’s bot is 30 good marks and overbot 26 marks and
16 ortugs.’ And also in the ‘City Law’ of A.D. 1300 the wergeld is stated
at 30 marks with an additional ‘overbot.’[193]

       *       *       *       *       *

[Sidenote: The Scanian wergeld perhaps that of the ‘bonde.’]

We seem bound to consider the wergeld of the freeborn man under the ‘Lex
Scania antiqua’ of the previous century as 15 marks of silver.

The explanation probably may be that the _bonde_ and not the hauld was
taken as the typical freeborn man.

When it is further considered that in the Danish version of the Scanian
law there is no mention of the hauld, and that, as we have seen, the
_bonde_ seems to have been regarded as the ordinary householder or
_paterfamilias_ of the family holding, the inference becomes probably a
fair one that the _bonde_ was the typical _ingenuus_ or freeborn man for
the purpose of the wergelds.

If this may be assumed, then the wergelds of the Scanian law accord well
with the Norse wergelds. For in that case the wergeld of the bonde is 15
marks of silver in both laws. And further the wergeld of the _libertus_
of the Scanian law and that of the Norse leysing after he had made his
freedom’s ale also correspond, being half that of the bonde.

It may further be noted that as in the Norse law so also in the Scanian
law the payment for an eye or hand or foot was half a manbot, while the
full manbot was payable if both eyes or hands or feet were destroyed.[194]


VI. SCANIAN AND LOMBARDIC CUSTOM COMPARED.

[Sidenote: Lombardic custom.]

Before closing this very imperfect chapter on the Scandinavian laws it
may be well to compare with them clauses from the Lombardic laws relating
to the family holding of land and property ‘in communione.’

The laws of the tribes still remaining on the Baltic were five or six
centuries later in date than the laws of the Lombardic emigrants who
had left their old home and settled in the South upon Roman ground. And
yet in this matter we find traces of the same ancient custom of family
holdings underlying them both, notwithstanding wide separation, and what
is more, of the same process of change going on notwithstanding the
difference in date. Roman and Christian influences had not reached the
Scanian district on the Baltic till the twelfth century, and were only
then effecting changes which in the seventh century had already been
accomplished in Transylvania and Italy.

[Sidenote: Edict of Rothar. A.D. 643. Kindred of seven generations.]

The first clause to which reference may be made is s. 153 of the ‘Edict
of Rothar’ (A.D. 643). It is entitled ‘De gradibus cognationum.’ It
is interesting as showing that seven generations were necessary to the
complete kindred.

    Omnis parentilla usque in septimum geniculum nomeretur, ut parens
    parenti per gradum et parentillam heres succedat: sic tamen ut
    ille qui succedere vult, nominatim unicuique nomina parentum
    antecessorum suorum dicat.

    Let every parentilla up to the seventh knee be named, so that
    parent to parent by grade and _parentilla_ the heir may succeed;
    so moreover that he who wishes to succeed must tell name by name
    the names of his antecedent _parentes_.

Seven generations would reach back to the great-grandfather’s
great-grandfather, an important limit of kindred both in the Norse laws
and those of the Cymri.

Another clause of the same edict (c. 167), under the heading ‘_De
fratres, qui in casam communem remanserent_,’ enacts as follows:--

[Sidenote: Family holdings.]

    Si fratres post mortem patris in casa commune remanserint,
    et unus ex ipsis in obsequium regis aut judicis aliquas res
    adquesiverit, habeat sibi in antea absque portionem fratrum;
    et qui foras in exercitum aliquit adquisiverit, commune sit
    fratribus quod in casa dimiserit.

    If brothers shall have remained in the common home after the
    father’s death and one of them shall have acquired some property
    in service of the king or judge, let him henceforth have it for
    himself without the brothers sharing in it. And if one shall have
    acquired anything abroad in the army let that be in common to the
    brothers which he left behind in the home.

    Et si quis in suprascriptis fratribus gairethinx fecerit, habeat
    in antea cui factum fuerit.

    And if any one of the said brothers makes a donation, let him to
    whom it was made have it henceforth.

The rest of the clause refers to payments to a wife brought into the
family holding by a brother. The ‘meta’ or portion has, in this case,
been given to her on marriage out of the common property, and so the
rights of the other brothers have to be considered.

    Et qui ex ipsis uxorem duxerit, et de rebus communes meta data
    fuerit: quando alteri idem uxorem tollere contigerit, aut quando
    ad divisionem faciendam venerit, simili modo de comunes rebus
    ei refundatur aliut tantum quantum frater in meta dedit. De
    paterna autem vel materna substantia quod relicum fuerit inter se
    æqualiter dividant.

    And he who of them marries a wife and her _meta_ was given from
    the common property, whenever it happens to another likewise to
    take a wife or whenever it comes to a division being made, in the
    same way there shall be refunded to him from the common property
    as much as the brother gave in meta. But whatever is left of the
    paternal or maternal substance let them divide among them equally.

[Sidenote: Rules of family divisions.]

Attempts to settle such questions as these, whether and how far property
acquired by one brother is to form part of the common family property
or be retained by the brother acquiring it, and again how the fact that
the payment for a wife’s ‘meta’ had been taken from the common family
property was to affect the rights of the brothers when they came to
a division, are in themselves good proof, so far as they go, of the
continuance of family holdings. But the changes made by these clauses
show the same tendency which we have seen in the Scanian laws towards
individual ownership and the breaking up of the family holdings.

Finally, the point which in the Scanian laws was most suggestive of the
original completeness of the family community of property, viz. that
originally there was no succession of sons to their father’s share, but
division _per capita_ between the uncles on the grandfather’s death,
appears again in the Lombardic laws and is dealt with in the seventh
century practically in the same way as in Scania it was dealt with
centuries later.

From the tribal point of view the solidarity of the family group was the
chief interest regarded. But the point of view was changed. Under the
new influences the interests of the individual came more and more into
prominence.

[Sidenote: No succession of sons by representation at first, but
afterwards allowed.]

It now seemed unjust to the sons that their father’s property should be
allowed simply to lapse into the common stock of the family till the
grandfather’s death and then left to be divided among the uncles. And to
mitigate the injustice the right to succeed was given, in the Lombardic
as in the Scanian laws, to the limited extent that upon the grandfather’s
death the sons took the share of their father with the uncles in the
division, as if he had been living at the time.

S. 5 of the ‘Leges a Grimowaldo additæ’ is headed ‘_De successione
nepotum qui post mortem patris in sinu avi remanserint_,’ and is as
follows:--

    Si quis habuerit filios legitimos unum aut plures, et contigerit
    unum ex filiis vivente patre mori, et reliquerit filios
    legitimos, unum aut plures, et contigerit avo mori, talem partem
    percipiat de substantia avi sui, una cum patruis suis, qualem
    pater eorum inter fratribus suis percepturus erat si vivus
    fuisset.

    If any one shall have legitimate sons, one or more, and it
    happens that one of the sons dies, the father being living, and
    he leaves legitimate sons, one or more, and it happens that
    the grandfather dies, let him [the son] take such part of the
    substance of his grandfather together with his uncles as their
    father if he had been alive would have taken among his brothers.

    Similiter et si filias legitimas unam aut plures, aut filii
    naturales unum aut plures fuerint habeant legem suam, sicut in
    hoc edictum legitur. Quia inhumanum et impium nobis videtur, ut
    pro tali causa exhereditentur filii ab hereditatem patris sui pro
    eo, quod pater eorum in sinu avi mortuos est, sed ex omnibus ut
    supra aequalem cum patruis suis in locum patris post mortem avi
    percipiant portionem.

    Likewise also if there were legitimate daughters, one or more,
    or natural sons, one or more, let them have their rights as is
    decreed in this edict. Because it seems to us inhuman and impious
    that for such a cause sons should be disinherited from the
    inheritance of their father because their father died in the mund
    of their grandfather. But let them take an equal portion with
    their uncles of everything in the place of their father.

The continued existence of community in the family property is shown by
the fact that, even after the concession made in this clause, during the
grandfather’s lifetime everything fell into the common stock and not
till a family redivision was made after the grandfather’s death was the
new rule admitting the sons’ succession along with their uncles to take
effect.

To trace further the survivals of tribal custom in the Lombardic laws
would lead us too far afield. The clauses already quoted are sufficient
to show a remarkable similarity of custom in the case of tribes once
neighbours on the Baltic notwithstanding that they had been widely
separated and that there was an interval of five or six centuries between
the dates of their laws.




[Illustration]




CHAPTER IX.

_TRIBAL CUSTOM IN SCOTLAND._


I. TRACES OF TRIBAL CUSTOM IN THE LAWS OF THE EARLY KINGS.

[Sidenote: Tribal custom in the ancient laws of Scotland.]

The population of Scotland was so various in origin and language that it
would be unreasonable to expect uniformity of custom. Even where Celtic
custom was best able to hold its own there must naturally have been a
mixture of Cymric and Gaelic elements. In districts, on the other hand,
where Frisian and Northumbrian and Danish and Norse influences may have
once predominated, whatever survivals there may have been of tribal
custom from any of these origins may well have been afterwards submerged
under legal forms and ideas from Anglo-Norman sources.

It is worth while, however, to examine what scattered survivals of tribal
custom may be found in the laws of the early kings, and in the various
documents collected in the first volume of the ‘Ancient Laws of Scotland.’

       *       *       *       *       *

That tribal custom as to wergeld existed and was recognised is proved by
the necessity to abolish what remained of it.

Thus in the ‘Leges Quatuor Burgorum’ is the following clause:--

[Sidenote: Laws of the Four Burgs.]

    XVII. _Of bludewyt and siklyk thingis._

    And it is to wyt at in burgh sall nocht be herde bludewyt na yit
    stokisdynt [styngisdynt] na merchet na heregelde na nane suilk
    maner of thyng.

This wholesale and disdainful disregard of feudal and tribal customs on
the part of the townsmen of the four Burgs was followed somewhat later
by an Ordinance of Edward I. (A.D. 1305) which again testifies to the
wider survival of more directly Celtic tribal usages by forbidding their
continuance.[195]

    Ordene est que l’usages de Scots et de Brets desorendroit soit
    defendu si que mes ne soient usez.

Here we have the usages of the Brets and Scots distinctly recognised as
still lingering on so late as the beginning of the fourteenth century in
some parts of Scotland.

[Sidenote: Laws of King David.]

In the laws of King David[196] there are distinct traces of ancient
custom as regards wergelds and the connection of the kindred with their
payment and receipt. In section XIV. it is enacted:[197]--

    If in any place within the peace of the King any one shall
    attempt to strike another, he shall pay to the King 4 cows and to
    the other 1 cow. If he shall really strike, but without drawing
    blood, 6 cows to the King and 2 cows to the other. If blood be
    drawn, 9 cows to the King and 3 to the person struck. If he slay
    the other, he shall give to the King ‘_XXIX ky and a colpindach_’
    (juvenca).[198] And he shall assyth to the kin of him slain after
    the assyse of the land.

Clause XV. deals with violence done in the king’s court:--

    If any one draws a knife to another in the King’s Court it shall
    be stricken through the middle of his hand. If he draws blood,
    the hand shall be cut off. And if he slay any man, he shall give
    to the King _XX ky and a colpindach_ [ixˣˣ, Ayr MS.] and he shall
    make peace with the kin of him slain and with the King ‘after the
    assyse of the kynrik.’

In both these clauses the wergeld to the kin is additional to the payment
to the king (of 180 cows?) for breach of his peace.

Clause XVI. forbids the letting off of a thief for money or friendship.
An earl or any one having the freedom and custom of an earl who does this
is to pay to the king 100 cows, and other great men not of earl’s rank 34
cows. The thief is to be ‘outlawed through all the king’s land.’

It is clear, then, that in the time of King David the system of wergelds
payable to the kindred of the person slain was generally in force, though
no amount is mentioned, and that payments were made at this date mostly
in cows.

[Sidenote: Assize of King William.]

In the ‘Assize of King William’ under date A.D. 1180 is the following
mention of the _wergeld_ to be paid evidently for a thief who has been
allowed to escape as above.

    XIV. _Of the law which is called weregylt._

    Of every thief through all Scotland whether that he be bondman or
    freeman the wergeld is XXXIV ky and a half.

The following clause is further evidence of the continued right of
vengeance on the part of the kin of a person slain.

    XV. _Of a man slain in the King’s vengeance._

    If any one for theft or rapin dies by law of iron or water, and
    of him right be done, or if he were slain with theft found with
    him and afterwards if his kin in vengeance of him slew him that
    brought him to the law, the King shall have as fully right of
    such men slayers for the death of him, as of his peace fully
    broken, without concord or relaxation; unless it be through the
    counsel or the assent of his kin.

    And if it happen by chance that the King grant peace to the
    adverse party unknown to the kin of him that was slain,
    nevertheless the kin of him shall take vengeance of them that
    slew their kin.

[Sidenote: Laws of Alexander II.]

Among the Statutes of Alexander II. under date A.D. 1220 the following
fines were imposed upon persons who held land of the king and who
absented themselves from the army. (Clause II., p. 68.)

    From a thane, 6 cows and a gillot [_juvenca_].

    From an _ochtyern_, 15 sheep or 6_s._ (half to King and half to
    the thane or the knight).

    From a carl [_rusticus_], a cow and a sheep to be divided between
    the King and the thane or knight, but if with the leave of the
    thane or the knight, then all to the King.

This clause reveals a social division of classes into thanes,
_ochtyerns_,[199] and carls or rustics; to which another clause (IV.,
A.D. 1230) enables us to add the nativus or ‘_kind-born bondman_.’

It is not needful to pursue the inquiry into the laws of the later
kings of Scotland. But among the ‘Fragmenta’ in App. V. (p. 375) of the
collection there is one which must not be overlooked, although it may be
difficult to fix its date. It seems to be made up of two fragments united
and is interesting as containing two very different statements of the
payment ‘for the life of a man.’

Put into modern English, the first part is as follows:--

    All laws either are man’s law or God’s law. By the law of God, a
    head for a head, a hand for a hand, an eye for an eye, a foot for
    a foot.

    By the law of man _for the life of a man ixˣˣ cows_, for a foot a
    mark, for a hand as much, for an eye half a mark, for an ear as
    much, for a tooth 12 pence, for each inch of length of the wound
    12 pence, for each inch of breadth of the wound 12 pence. For a
    stroke under the ear 16 pence, for a stroke with a staff 8 pence,
    and if he fall with the stroke 16 pence. For a wound in the face
    he shall give an image of gold [? a coin with the King’s head
    upon it].

The other part is as follows:--

    And by man’s law for breaking of bones 5 ores, for a wound under
    the clothes 12 pence. For a wound before the sleeve 16 pence, and
    for each visible wound except the face 15 pence. _For a man’s
    life 12 marks_; for a wound above the chest 6 solidi, and under
    the chest 60 pence; for a foot stroke 60 pence; for blood drawn
    25 shillings, and beyond the sea 6 cows.

[Sidenote: Amount of the wergeld doubtful.]

Now what are we to make of these ‘Fragmenta’? Clearly the two fragments
must be taken separately, for in the first the payment ‘for the life of
a man’ is 180 cows and in the second the payment ‘for a man’s life’ is
twelve marks.

Mr. Robertson seems to have concluded that the payment of 180 cows was
the wergeld according to the Assize of Scotland, or, as he puts it, ‘the
manbote for homicide throughout Scotia.’[200] But he arrived at this
conclusion apparently by connecting this fragment with the clause already
quoted in the Assize of King David which states that a person killing
another in any place within the king’s peace ‘shall pay to the king 180
cows and a colpindach.’ He concluded that the payment was 180 cows from
the reading ‘ixˣˣ cows,’ as it is found in the Ayr manuscript of one of
the clauses, as already stated. But the clause itself shows that this
payment to the king was not the wergeld, because after making this
payment the slayer had still to ‘assyth to the kin of him slain after the
assyse of the land.’

Nor does it seem any more likely that the payment of twelve marks
mentioned in the second fragment was the wergeld of Scottish custom.
From its amount it seems much more likely to correspond with the payment
already alluded to as the ‘wergeld’ of the thief allowed to escape,
which, however, might possibly represent that of persons of lowest rank.

The evidence of these undated fragments leaves us in the dark as to what
the wergeld of the ancient Assize of Scotland may have been. Confused and
mixed statements as to the wergelds are not surprising when the mixture
of races is taken into account, and, after all, the phrase ‘after the
assize of the land’ or ‘after the assize of the Kynrik’ may refer only to
those portions of the kingdom to which the laws of King David specially
applied.


II. THE ‘REGIAM MAJESTATEM.’

Further traces of tribal custom are mentioned in the treatise entitled
‘Regiam majestatem’[201] apart from the remarkable addition to it, which
also appears again as a separate document, under the heading ‘Leges inter
Brettos et Scotos.’

[Sidenote: Scotch version of Glanville.]

The ‘Regiam Majestatem’ itself may be regarded as a version of
Glanville’s well-known treatise on English law, applied with alterations
and adaptations to Scotland by a Scotch writer conversant with local
custom, and probably dating between A.D. 1200 and 1230.[202]

As in the laws of King David and his successors, so in the body of this
treatise, references to ancient usages occur with occasional survivals of
untranslated Gaelic words which seem to refer them back to Celtic tribal
custom.

[Sidenote: Celtic survivals here and there.]

Thus, in Lib. II. s. ix, in reference to the modes by which _nativi_
might obtain freedom, a specially Scotch addition is made, to the effect
that if a lord has carnal intercourse with the betrothed wife of his
_servus_, and this is proved by the visinage, the _servus_ is thereupon
released from the servitude of his lord; and then follows the phrase ‘nec
aliud _enache_ habebit a domino suo nisi recuperationem libertatis.’
This untranslated Gaelic word _enache_ has already been met with in the
_enec-lann_ of the Irish ‘honour-price,’ and we shall find it used again
when we come to the customs of the Bretts and Scots.

So, in Lib. IV. c. 7, in cases of rape the woman (according to the
text of Glanville) is to make it known to men in good position (_probi
homines_) or to the ‘_prepositus_ of the hundred.’ In this Scotch
treatise the writer inserts instead of the words ‘_prepositus_ of the
hundred’ ‘_vicecomitatus vel le toshederach_.’ The Gaelic _Toshach_ or
chieftain of a district is much in evidence in the marginal records of
the ‘Book of Deer.’[203]

Again, in IV. 12, in a passage not found in Glanville, the theft of a
calf or ram or whatever can be carried off on the back is described in
the local words ‘_berthinsak_ seu _yburthananseca_.’

In the same chapter is inserted the already quoted clause from the Assize
of King William as to the wergeld of a thief who has been allowed to
escape.

    De unoquoque fure per totam Scociam est _wargeld_ triginta vacce
    et una juvenca sive fuerit liber sive servus.

In IV. xxiii. a pledge is mentioned ‘quod vocatur _culrach_.’

[Sidenote: Cro and galnes of person killed paid to the _parentes_.]

In IV. xxx. of the treatise it is stated that if a person on horseback
rides over some one going before him so as to kill him, he must render
for the dead man so killed ‘_cro et galnes_’ as if he killed him with
his own hands; and it goes on to say that if the rider treads a man to
death by riding over him when _backing_ his horse (as it would not then
presumably be his fault) he is to pay nothing but ‘the fourth foot of
the horse,’ which satisfaction the _parentes_ of the man killed ought to
accept.

The mention in this treatise of _cro and galnes_ payable to _parentes_
of the slain seems to imply that the customs relating to payments for
homicide were generally in force throughout Scotland and not confined to
any particular district. The words ‘cro and galnes,’ apparently meaning
the wergeld, meet us again in the document relating to the customs of the
Bretts and Scots.

The final clause (IV. liv.) describes the ‘merchet’ of women ‘according
to the assize of Scotland.’ It begins by stating that the merchet of
a woman, _quecunque mulier fuerit, sive nobilis, sive serva, sive
mercenaria_, is ‘una juvenca vel tres solidi’ with 3_d._ as _rectum
servientis_. Surely a female slave is here intended.

[Sidenote: Merchet of several grades of women.]

This seems to be the minimum ‘merchet,’ for the clause proceeds:--

    And if she be the daughter of a freeman and not of the lord of
    the town (_dominus ville_) her merchet shall be one cow or six
    shillings and ‘rectum servientis’ 6_d._ Likewise the merchet [of
    the daughter] of a thane’s son or _ochethiern_ two cows or twelve
    shillings and ‘rectum servientis’ 12_d._

    Likewise the merchet of the daughter of an earl (_comes_); and
    that of a queen; twelve cows and ‘rectum servientis’ two solidi.

This clause regarding the ‘merchet’ is useful as giving a scale of values
in cows and shillings.

  juvenca = 3 shillings. cow = 6 shillings.

  And the merchet scale:

           {_nobilis_ [?]}
  _Mulier_ {_serva_      } throughout Scotland     ½ cow.
           {_mercenaria_ }

  Daughter of a _liber_                           1   ”
     ”     of a thane’s son or ochethiern         2  cows.
     ”     of an earl or of a queen              12   ”

[Sidenote: Value the cow six Norman shillings: at 1:12 = stater.]

The solidus of this document can hardly be any other than the
Anglo-Norman silver shilling of 12 pence of 32 wheat-grains, _i.e._
384 w.g. The cow equalled six of these shillings or 2304 w.g. At the
Anglo-Norman ratio of 1:12 the value of the cow would thus be 192
wheat-grains: that is, exactly the normal ox-unit of two gold solidi of
Imperial standard.

This curious result is not only interesting as one more instance of
the tenacity of custom in retaining the traditional gold value of the
animal used as the unit of payments when made in cattle, but also useful
for our present purpose as affording a valuable proof that the Scotch
compiler of the ‘Regiam Majestatem’ in appending the important clauses
relating to the customs of the Bretts and Scots which follow closely upon
this merchet clause was adding to his work a quite independent document,
probably of much earlier date.

[Sidenote: Value of the cow in the next document three ores, or at 1:8 =
stater.]

In this added document while the payments are again stated in cows, the
value of the cow is reckoned, not in shillings, but in _ores_, which the
figures, when examined, show to be ores of 16 pence. This reckoning in
ores of 16 pence suggests a Norse or Danish influence. For, although the
Anglo-Norman reckoning in shillings of 12 pence ultimately conquered and
became the prevalent reckoning in the Scotch statutes, there was no doubt
a period when the reckoning in ores of 16 pence was in use in Danish
England, probably including Northumbria.

This is shown by a law, probably of Cnut’s,[204] which enacted as
follows:--

    Et ipsi qui portus custodiunt efficiant per overhirnessam meam ut
    omne pondus sit marcatum ad pondus quo pecunia mea recipitur, et
    eorum singulum signetur ita quod xv ore libram faciant.

    Those who have charge of the towns (_portus_) shall secure that
    under penalties every weight shall be marked at the weight by
    which my money is received, and let each of them be marked so
    that fifteen ores shall make a pound.

The ores of this law, as we shall see, were evidently ores of 16 pence,
or 512 wheat-grains (16 × 32), for fifteen of such ores made the Saxon
and Anglo-Norman pound of 240 pence, or 7680 wheat-grains.

[Sidenote: Danish ratio of 1:8.]

The fact that the ore of the document describing the customs of the
Bretts and Scots was the same ore as that in use with both Danes and
English in Danish England and probably Northumbria about A.D. 1000 is an
important one. For in this document the value of the cow of the Bretts
and Scots is stated to be three ores, _i.e._ 1536 wheat-grains of silver,
and at the Scandinavian ratio of 1:8 the gold value of the cow would
therefore be once more 192 wheat-grains or two gold solidi of Imperial
standard. That the Danish ratio was 1:8 as in the Scandinavian laws we
shall find to be involved in the Anglo-Danish compacts making Danes and
English ‘equally dear,’ while as late as A.D. 1192 the Abbey of Kelso
compounded for payments to the Pope at the same ratio, two solidi of
sterlings (24_d._ of 32 wheat-grains), or 768 wheat-grains of silver
being paid for the gold solidus of 96 wheat-grains.[205]

[Sidenote: Laws of the Bretts and Scots belong to time of Danish
influence.]

We may therefore consider that the document relating to the Bretts and
Scots belongs to the period of Danish influence, and is of much earlier
date than the work to which it was appended by the Scotch editor of
Glanville.


III. LEGES INTER BRETTOS ET SCOTOS.

[Sidenote: Norman French version thirteenth century.]

The remarkable document printed separately in Appendix III. of the
‘Ancient Laws of Scotland’ under the above title is given in three
languages--Latin, Norman French, and Scottish English.

The oldest version of it is that of the ‘Berne Manuscript,’ now in
the ‘Register House’ at Edinburgh, which is considered to be of the
thirteenth century. It appears in this manuscript as a separate document
in Norman French, and therefore it would seem that we owe this statement
of ancient custom to a Norman scribe. The Latin version added to the
‘Regiam Majestatem’ is of later date. The earliest manuscript is of the
fourteenth century.[206]

As given in the ‘Regiam Majestatem’ it consists of four clauses, LV. to
LVIII.

[Sidenote: The cro and galnes.]

The clauses are headed ‘Quid sit le cro quod anglice dicitur “grant
before the King,”’ ‘De occisis in pace Regis,’ ‘De Kelchyn regis et
aliorum dominorum Scocie,’ and ‘De effusione sanguinis.’

It is printed in Appendix III. of the ‘Ancient Laws of Scotland’ among
the ‘capitula vetustiora’ under the heading ‘Leges inter Brettos et
Scotos.’ The Norman French of the Berne manuscript is accompanied by the
Latin from the ‘Regiam Majestatem’ and a Scottish-English version of
unknown date.

The first clause is as follows:--

    De cro quod anglice dicitur grant befor the Kyng.

    De cro le Rey descoce & des altres choses.

    Her folowis lee Croo.

       *       *       *       *       *

    Statuit dominus rex quod le Cro domini regis scocie est mille
    vacce vel tria millia orarum aurearum scilicet tres ore pro
    vacca. Item le Cro filii regis vel vnius comitis scocie est
    septies viginti [et decem] vacce vel tres ore pro vacca.

    Cro le rei descoce est · mile vaches · u · treis mil ores · e fet
    a sauer treis ores · a la vache. Cro a vn conte descoce · v del
    fiz le Rei · viiˣˣ · vaches · ⁊ x · ov · iiiiᶜ ⁊ · L · ores.

    Þe lord þe king has statut þat þe Croo of þe king of scotland iᵐ
    ky or iiiᵐ orarum aurearum bot iii ar for þe kow. Item þe Croo of
    þe kingis soune or of ane erl of scotland is vii tymes xxᵗⁱ ky
    and ten ky.

       *       *       *       *       *

    Item le Cro filii vnius comitis vel vnius thani est centum vacce.

    ¶ Cro a vn fiz a cunt ou a vn thayn · est · C · vaches · u ·
    treis · C · ores.

    Item þe Croo of þe sone of ane erl or of a than is jᶜ ky.

       *       *       *       *       *

    Item le Cro filii thani est sexaginta sex vacce et due partes
    vnius vacce.

    ¶ Cro a fiz dun thayn · est · lxvi · vaches · ⁊ · ii · pars dune
    vache · ou · CC · ores.

    Item þe Croo of þe sone of a thane is iiiˣˣ ky and vi ky and
    twapert a kow.

       *       *       *       *       *

    Item le Cro nepotis vnius thani vel vnius ogthiern est
    quadraginta quatuor vacce et viginti unus denariorum et due
    partes vnius denarii. Et omnes bassiores in parentela sunt
    rustici.

    ¶ Cro · del neuu · a vn thain · u · de vn ogettheyrn est · xliiij
    · vac͠c · ⁊ · xxi · đ · ⁊ deu pars dun deñ. E tu li plꝰ [bas] en
    le parente sūt vilayns · ⁊ vnt dreitᶻ a vilayn.

    Item þe Cro of þe newow of a than or of ane ogethearn is xliiii
    ky and xxi penijs and twapert of a peny. Item al þir þat ar lawer
    þan þir in kyn ar callit carlis.

       *       *       *       *       *

    Item le Cro vnius rustici est sexdecim vacce.

    ¶ Cro a vn vileȳ · xvi · vac͠c.

    Item þe cro of a carl is xvi ky.

       *       *       *       *       *

    Item le Cro cuiuslibet femine virum habentis est minor per
    terciam partem quam le Cro viri sui et si non habeat virum tunc
    le Cro ipsius est adeo magnum sicut le Cro fratris sui si quem
    habet.

    ¶ Cro a checune fēme q̃ barō at · est de la tierz partie mayns de
    son barō · et si ele nat nēt de barō · dūkes est le cro ausi gʳnt
    cū vne de se freres.

    Item þe Croo of euerilk woman hafand husband is less be þe
    thridpert þan þe cro of hyr husbande. And gif scho has nocht a
    husband þan þe cro of hir is alsmekil as þe cro of hir broder gif
    scho ony broder has.

       *       *       *       *       *

    Item le Cro et le galnys et le enach vnius cuiusque hominis sunt
    pares scilicet in respectu de le enach feminarum suarum.

    le cro ⁊ le galnis · ⁊ le enach a checū hōme sūt peirs · ceo est
    a sauer le enach · pur sa fēme.

    Item þe Cro and þe gallnes and þe enauch of euerilkaman ar lik
    þat is to say in respic of enauch of þar wiffis.

It will be most convenient to put these payments of the cro and galnes
into a tabular form.

  _King of Scotland_                  1000     cows = 3000 ores
  King’s son and comes (earl)          140     cows =  420  ”
  Comes’ son and thane                 100     cows =  300  ”
  Thane’s son                           66⅔    cows =  200  ”
  Thane’s grandson or ogthiern          44     cows &  21_d._ and ⅔_d._
  All lower in _parentela_ or kin and
  rustics                               16     cows

[Sidenote: Thane’s wergeld 100 cows.]

The cro and galnes seem to be substantially the same thing as the
wergeld. The word ‘cro’ is of uncertain meaning. The ‘cro’ of the Brehon
laws is translated ‘property.’ It seems also to have had the meaning of
‘death.’ The word ‘galnes’ can hardly be other than the Welsh _galanas_
or wergeld. Whether the phrase ‘cro and galnes’ means two things or one
thing, and if two things, what the distinction between them was, it is
not easy to see. But evidently the two together made a single payment
for each grade of rank. The payments, moreover, are expressed in cows as
well as in ores and pence, and the payment of 100 cows seems to mark the
_thane_ as the typical and complete tribesman.

The two explanatory clauses introduce a third element, the ‘enach.’

    The Cro of a woman having a husband is one third less than the
    husband’s cro, and if no husband she has the same cro as her
    brother.

    The _Cro_ and the _galnys_ and the _enach_ of every man are
    alike, that is to say in respect of the _enach_ of their wives
    [_i.e._ one third less than the husband’s].

The enach, as already said, seems to be the honour-price of the Brehon
law. We have seen that, according to the Scotch addition and Glanville’s
clause, if a slave was injured by his master, he was to be set free and
his freedom was to be in the place of any other ‘enach.’ This accords
well with the Irish enec-lann and the Welsh saraad and the Norse rett,
all of which referred to insult rather than bodily injury.

[Sidenote: Payments for breach of peace of various persons.]

The next clause relates to homicide ‘in pace regis’ or of other lords.
We have already seen that in the laws of King David the manbote or
payment to the king for breach of his peace, or for crime committed in
his _grith_ or precinct, was a thing distinct from the satisfaction to
be made to the kin of the person slain ‘according to the assize of the
Kynrik.’ In these early laws the payment for slaying a man in the king’s
peace was, according to the corrected text, 180 cows. In the following
clauses 180 cows are again the payment for breach of the king’s peace,
but there are payments also for breach of the peace of other classes.

    De occisis in pace regis.

    []

    Of þhaim þat ar slayn in þe peis of þe king and oþer lordis.

       *       *       *       *       *

    Si quis homo sit occisus in pace domini regis sibi pertinent
    nouies viginti vacce.

    ¶ Si hūme est ocys en la pes le rei · il a feit · ixˣˣ vac͠c.

    Giff ony man be slayn in þe pes of our lord þe king til him
    pertenis ix tymis xxᵗⁱ ky.

       *       *       *       *       *

    Item si homo sit occisus in pace filii regis vel vnius comitis
    sibi pertinent quater viginti et decem vacce.

    ¶ Si hūme seit ocis en la pes · le fiz le rei · v en la pees vn
    cunte · ilur · a feit · iiijˣˣ · vacc · ⁊ · x.

    Item gif a man be slayn in þe pes of þe sone of þe king or of ane
    erl til him pertenis iiij tymis xxᵗⁱ ky and x ky.

       *       *       *       *       *

    Item si homo sit occisus in pace filii vnius comitis vel in pace
    vnius thani sibi pertinent sexaginta vacce.

    ¶ Si hūme seit ocis · en la pees · al fiz dun cunt · v · de vn
    thain · ilur a feit · lx · vachis.

    Item gif a man be slayn in þe pes of þe son of an erl or of a
    thayn till him pertinis iijˣˣ ky.

       *       *       *       *       *

    Item si homo sit occisus in pace filii vnius thani sibi pertinent
    quadraginta vacce. Item si homo sit occisus in pace nepotis vnius
    thani sibi pertinent viginti vacce et due partes vnius vacce.

    ¶ Si vn seit occis en la pees al fiz dun thain · ili a feit ·
    xxvi · [· _xl_ ·] vac͠c.

    Item gif a man be slayn in pes of þe sone of a thayn til him
    pertenis xl ky. Item gif a man be slayn in þe pece of a nevo of a
    thayn til him pertinis xxᵗⁱ ky and twapert a kow.

The payments were as under:--

  If a man be killed _in pace regis_     180 cows.  } _To the
  In that of the King’s son or comes      90  ”     } person in
     ”     ”     comes’ son or thane      60  ”     } whose peace
     ”     ”     thane’s son              40  ”     } he was
     ”     ”     thane’s grandson         20⅔ ”     } killed._

They seem to be very large, but they are not impossible, seeing that in
the Norse law, while the wergeld of the hauld was 27 marks of silver or
96 cows, the payment to the king for the breach of his peace (frith-bot)
was 40 marks, _i.e._ 128 cows.[207]

[Sidenote: The Kelchin.]

The next two clauses, under the heading ‘Kelchin’ or ‘Gelchach,’ seem to
refer to insult or wounding, (the Welsh _gweli_ = wound). And as the word
_enach_ does not occur again in the laws of Bretts and Scots it seems
probable that it may have been included under this heading, and that
the Kelchin or Gelchach, like the Irish _enach_ and the Welsh _saraad_,
referred quite as much to insults to personal honour as to bodily
injuries.

    _De Kelchyn_

    [ ]

    _Of lee Kelchyn_

       *       *       *       *       *

    Item le kelchyn domini regis est centum vacce. Item le kelchyn
    filii regis vel vnius comitis est sexaginta sex vacce et due
    partes vnius vacce.

    ¶ Gelchach le rei · a · C · vacc · a cont v al fiz le rei ·
    lx[vi] vac͠c · ⁊ · ii · pars deune vac͠c.

    Item þe kelchin of our lord þe king is jᶜ ky. Item þe kelchyn of
    a sonne of þe kingis or of an erle is iijˣˣ ky [and sex ky and
    twapert of a kow].

       *       *       *       *       *

    Item le kelchyn filii vnius comitis vel vnius thani est
    quadraginta quatuor vacce viginti vnus denarii et due partes
    vnius oboli. Item le kelchyn filii thani est minor per terciam
    partem quam patris sui et sunt viginti nouem vacce [    ]
    vndecim denarii et tercia pars vnius oboli. Rusticus nichil habet
    de kelchyn.

    ¶ Gelchac · de thayn · v · de fiz a cunt · est xliiij · vac͠c · &
    · xxi · đ · ⁊ deus pars deune mayl.

    Item þe kelchin of a thane or of þe sone of ane erle is xliiij ky
    and xxi peniis and twapert of a half peny. Item þe kelchin of þe
    sonne of a thane is les be thrid part þan of his fader þat is to
    say þar pertenis til him xxix ky and xi peniis and þe thrid part
    of a half peny. And a carl has na kelchin.

       *       *       *       *       *

    Item si uxor liberi ominis sit occisa vir suus habebit le kelchyn
    [    ] parentes eius habebunt le cro et le galnes.

    ¶ Si fēme a vn franc hūme est ocis · son barō auera le kelchin ·
    ⁊ ses parens auerūt le cro & le galnis.

    Item gif þe wif of a fre man be slayn hyr husband sal haf þe
    kelchyn. And hir kyn sal haf þe cro and þe galnes.

       *       *       *       *       *

    Item si uxor rustici sit occisa dominus ipsius terre in qua manet
    habebit le kelchyn et parentes eius le cro et le galnes.

    ¶ Et si fēme a vileyn seit ocis · le seygnur del fe v le vilein
    meint auera le kelchin · ⁊ le vilein auera le turhochret a sa
    fēme del kelchin · ⁊ le parens [le cro] et le galnis.

    Item gif þe woman of a carl be slayn þe lord in quhais lande he
    duellis sal haf þe kelchin and hyr kyn sal haf þe cro and þe
    galnes.

       *       *       *       *       *

    [Sidenote: Payments for blood drawn.]

    _De effusione sanguinis_

    [ ]

    _Of blude drawyn_

       *       *       *       *       *

    Item sanguis de capite vnius comitis aut filii regis sunt nouem
    vacce. Item sanguis filii comitis aut vnius thani sunt sex vacce.
    Item de sanguine filii thani tres vacce. Item de sanguine nepotis
    thani due vacce et due partes vnius vacce. Item de sanguine vnius
    rustici vna vacca.

    ¶ Le saūc de la teste a vn cūte v · del fiz al rei · est · ix ·
    vaches · del thayn · v del fiz al vn cūte · vi · vachis · del fiz
    al vn thayn · iij · vac͠c.

    Þe blude of þe hede of ane erl or of a kingis son is ix ky. Item
    þe blud of þe sone of ane erle is vi ky or of a thayn. Item þe
    blude of þe sone of a thayn is iij ky. Item þe blud of þe nevo of
    a thayn is twa ky and twapert a kow. Item þe blud of a carl a kow.

       *       *       *       *       *

    De sanguine extracto subtus anhelitum est minus per terciam
    partem in omnibus supradictis.

    ¶ Le saunc de suz le alayn · est de la terce parte meyndre.

    Item blude drawyn vnder þe aand is thrid pert les of al þir
    gangand befor.

       *       *       *       *       *

    Et si mulier non habeat virum ius suum erit sicut ius fratris sui
    si quem habeat.

    ⁊ ensemēt de lur fēmes est saunc est del tꝰce part mayndre · mes
    si fēme seit sen baron ··· dūkes ad ele tel dreitur · com sun
    frere.

    And gif a woman haf nocht a husband hyr rycht salbe as of her
    broder gif scho ony broder has.

       *       *       *       *       *

    Item percussio sine sanguine effuso decem denarii.

    Item strikyn without blud drawyn x penijs.

    ···· ¶ Et si hūme est ocis en le ost · sun seingnʳ · auera le
    kelchin · ⁊ ses parens le cro · e le galnis · ⁊ le rei · viij ·
    vaches · flatha.

Put into a tabular form these payments are as follows:--

    _Kelchyn or Gelchach_

  King                    100    cows
  Son of King or comes     66⅔    ”
  Son of comes and thane   44     ” and 21 _d._ and ⅔ _ob._
  Son of thane             29     ”  ”  11 _d._  ”  ⅓  ”
  Rusticus or carl       _nil_

    _De effusione sanguinis or of blude drawyn._

  Blood drawn from the head of a
    Comes or King’s son              9 cows
    Comes’ son or thane              6  ”
    Thane’s son                      3  ” (? 4)
    Thane’s grandson                 2⅔ ”
    Rusticus                         1 cow

    Blood drawn _subtus anhelitum_ one third less than above it.

    If a woman have not a husband her right shall be as her brother,
    if she has one.

    Striking without blood drawn 10_d._

That we are right in supposing the kelchin to be analogous to the Welsh
_saraad_ seems to be confirmed by the interesting additional information
appended to the clauses.

    And if the wife of a freeman is slain her husband has the Kelchyn
    and her kin the Cro and galnes.

    Item if the woman of a carl be slain, the lord of the fee where
    he dwells shall have the Kelchin and the vilein shall have his
    wife’s _turhochret_ of the Kelchin and her kin shall have the cro
    and the galnes.

    If a man be killed in the host, his lord shall have the Kelchin
    and his _parentes_ the cro and the galnes and the King eight cows
    _flatha_.

These clauses of explanation are very important when we try to understand
the laws to which they are appended as a whole.

       *       *       *       *       *

[Sidenote: The thane’s wergeld the normal one of 100 cows.]

Commencing with what seems to be the wergeld, the ‘cro and galnes’ of the
thane, who may be taken as the typical freeman, was 100 cows. We have
seen that the value of the cow was three ores of silver or, at a ratio of
one to eight, 192 wheat-grains of gold. The wergeld was therefore, not
only the usual round number of 100 cows, but also in gold value, like
that of the Cymric codes and so many others, exactly 19,200 wheat grains
or 200 gold solidi.

If we try to trace the connection of this wergeld with those of other
tribes, the coincidence with the normal wergeld does not help us much.

It is the same as the Welsh galanas of the uchelwr, and the use in the
laws of Cymric and Gaelic words might lead us to look upon the wergeld
as a Celtic one. But the equality in the payment is in _gold_ and not in
the number of cows. The cro of the thane was 100 cows. The galanas of the
Welsh uchelwr was 120 cows. Moreover, the cows in which the Welsh galanas
was paid were equated with three scores of silver, _i.e._ three Saxon
ounces of 20_d._, while the cows in which the cro was paid were equated
with three ores of 16_d._ And this seems to point to a Danish connection.

All these things taken together seem to point to a mixture and confusion
of influences rather than to a single origin.

       *       *       *       *       *

The gradations of rank and position disclosed by the amount of the cro or
wergeld seem to be based upon family seniority, and to have a character
of their own.

[Sidenote: The gradations of rank in the family.]

The King of course stands at the head of the list with a cro of 1000
cows. His son takes equal rank with the earl with a cro of 140 cows. The
earl’s son is of equal rank with the thane, and they have a cro of 100
cows. Then comes the thane’s son with a cro of one third less, or 66⅔
cows, and next the thane’s grandson with a cro one third less again, of
44 cows and 21⅔ pence. All below this in _parentela_ or kin are classed
with rustics or carls, with a cro of 16 cows.

Looking at the position of persons at any given moment, from the point of
view of the thane, he has the earl and the king above him and the earl’s
son as his equal in rank. Their children and grandchildren belong still
to the chieftain class, but they are juniors or cadets of the class.
Even the grandchildren of the thane are _ogthierns_, or young thanes. In
natural course they may presumably take their father’s rank on his death,
but not until that happens. And possibly only the eldest son of the earl
or of the thane succeeded to the official position of chieftain of his
house.

Beyond this there is not much more to be gathered concerning the
gradations in social rank. Nor are we told anything about the division of
the amount among the members of the kindred receiving or paying the cro
as the case might be. We are told only that the cro and galnes belonged
to the kin of the person slain.

Turning from the cro and galnes to the _kelchin_: what are we to make of
it?

[Sidenote: The kelchin like the Welsh saraad for insult.]

The gradations resemble those of the cro to this extent, that the kelchin
of each grade was one third less than that of the one above, but the
kelchin was no direct fraction of the cro. The kelchin seems, as we have
said, to be something like the Welsh _saraad_ for insult or wounding,
the Irish _enec-lann_ or honour-price, and the Norse _rett_ or ‘personal
right;’ but it does not seem to correspond altogether with any one of
them.

All we know is that on the homicide of a person, whoever he might be, in
addition to the cro and galnes, the kelchin had to be paid. But it was
a payment which, like the Cymric saraad, according to the interesting
explanation given, did not go with the wergeld proper to the kindred or
relations in blood. When a wife was slain, the husband, who was not a
blood relation or of the kindred of the wife, took the kelchin, while the
wergeld proper--cro and galnes--went to her kindred.

[Sidenote: Each grade had a precinct and a fine for breach of it. But not
the carl or rustic.]

Turning to the payment which had to be made for breach of the peace
or protection of the lord, it was a payment due to the king if the
homicide were perpetrated ‘in pace regis,’ and to a person of each
grade in succession, even to the thane’s grandson, in case the homicide
were committed within his precinct. Only the carl or rustic received no
payment, as presumably he was living on the land of a lord, who would,
therefore, claim it.

The position of the carl or rustic, or in Norman French the _vilein_,
is interesting. If his wife was killed the lord took the kelchin. The
homicide was reckoned as an insult and loss to him. The wergeld did not
go to the husband but to the kindred of the wife, as in the case of those
of higher grade. So that, so far as this at least, there was recognition
of kindred in the rustic’s position. His ‘cro and galnes’ was just about
one sixth of that of the thane and presumably went to his kin--as his
wife’s cro and galnes went to her kin.

There is one other point as yet unexplained--what was the ‘turhochret’?

It occurs in the clause:--

    Item if the woman of a carl be slain, the lord of the fee where
    he dwells shall have the kelchin _and the vilein shall have his
    wife’s turhochret_ of the kelchin and her kyn shall have the cro
    and the galnes.

There are so many Gaelic words in this document that there can be little
doubt that the _turhochret_[208] is one of them. It seems to have been
the part of the kelchin allowed by the lord to go to the husband in
respect of the insult to his wife--_i.e._ _her_ share in the kelchin.
Whatever it was, when the wife was slain, the husband retained it, while
the lord took the rest of the kelchin, and the wife’s kin the cro and
galnes of their slain kinswoman. The information given is scanty, but it
is difficult to make this passage mean anything else.

[Sidenote: The wife belonged to her own kindred.]

One thing is made remarkably clear in this document: that the wife of
the free tribesman did not among the Bretts and Scots pass upon marriage
under the full _potestas_ of her husband. On her murder, while it was
an insult to him and he therefore could claim the kelchin, the cro and
the galnes passed to her kin. The wife, therefore, in a very real sense
belonged still to her own kindred.

These rules of tribal custom as regards marriage need no longer surprise
us after what we have found elsewhere. They closely resemble in principle
Cymric usage and are, after all, what the study of Beowulf prepared us to
regard as by no means confined to the Celtic tribes.


IV. RECOGNITION OF THE FOURTH AND NINTH DEGREES OF KINDRED IN SCOTLAND.

In the foregoing sections no distinct reference has been made to the
recognition of the fourth and ninth degrees of kindred. It would be
misleading to pass from the Scottish evidence without allusion to the
subject.

Strongly influenced as custom in Scotland must have been by both Cymric
and Gaelic as well as Norse and Danish traditions, it would be strange if
no trace were left in Scotland of so marked a feature of tribal policy.

[Sidenote: The nine degrees of kindred.]

It will be enough, however, to refer the reader to the interesting
chapter on ‘The Kin’ in the second volume of Mr. Robertson’s ‘Scotland
under her early Kings,’ in which he alludes to ‘the words in which the
Northern St. Margaret is supposed to have formally renounced her kindred
(“al my Kun I forsake to the nithe Kne”), and to the “nine degrees of
kindred” within which all connected with the Earl of Fife might claim the
privileges of the Clan Mac Duff.

And after what we have seen of the way in which the Norse _leysing_ rose
by steps of four generations into increasing freedom as a kindred grew
up around him, it may be worth while to recall attention once more to
the reverse process by which the _nativus_ or _villanus_ under later law
became attached to the land.

[Sidenote: The fourth generation fixes the status of _nativi_.]

Among the fragments of Scotch laws collected under the heading ‘Quoniam
attachiamenta’[209] is the clause ‘_De brevi de nativis_’ which may be
translated as follows:--

    There are different kinds of _nativi_ or bondmen. For some are
    _nativi de avo et proavo_ which is vulgarly called _de evo
    et trevo_, whom he [the lord] will claim to be his _nativi_
    naturally, by beginning to narrate their ancestors, if
    their names are known, to wit, of his _great-grandfather_,
    _grandfather_, and _father_, who are convicted by his saying that
    they all are his _nativi_ in such and such a villa of his, and in
    a certain place within the said villa on servile land, and that
    they rendered and did to him and his ancestors servile service
    for many days and years, and this “nativitas,” or bondage, can
    be proved through the parents of the convicted one, if they are
    alive, or _per bonam assisam_.

    Likewise, there is another kind of bondage, similar to this,
    where some stranger shall have taken some servile land from some
    lord doing servile service for the same land, and if he die
    on the same land, and his son likewise, and afterwards _his_
    son shall have lived and died on the same land, then all his
    posterity [_i.e._ his great-grandsons] shall be at the fourth
    grade altogether in servile condition to his lord, and his whole
    posterity can be proved in the same way.

    There is a third kind of _nativitas_, or bondage, where some
    freeman, _pro dominio habendo vel manutenencia_ [_i.e._ for
    protection or maintenance] from some magnate, gives himself up to
    that lord as his _nativus_ or _bondman_ in his court by the front
    hair of his head (_per crines anteriores capitis sui_).

Whatever may have been the date and origin of these remarkable clauses,
they are valuable as showing how tribal tradition became hardened in
course of time into Feudal law, and how, the transition from tribal to
Feudal principles having been accomplished, what is known everywhere by
the name of ‘serfdom,’ became domiciled in Scotland.




[Illustration]




CHAPTER X.

_ANGLO-SAXON CUSTOM FROM THE NORMAN POINT OF VIEW._


I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS.

[Sidenote: The Kentish laws to be treated apart.]

In approaching the question of Anglo-Saxon tribal custom it is needful to
make a clear distinction between the laws of the Kentish kings and the
other Anglo-Saxon laws.

The laws of the Kentish kings are known only in the MS.--the Textus
Roffensis--compiled or collected by Ernulf, Bishop of Rochester from 1115
to 1125, and are not included in the other collections containing the
laws of King Alfred and Ine.

The evidence for Kentish custom seems, therefore, to be independent
of that of Wessex or Mercia or Northumbria. Further, in the so-called
‘Laws of Henry I.’ at the conclusion of the statement of the customs as
to homicide in s. LXXVI. it is distinctly stated that the wergelds in
Kent differed much from those of Wessex both as regards _villani_ and
_barones_.

It will therefore be necessary to examine the Kentish laws separately
from the others.

[Sidenote: Laws of Henry I.]

On the whole, with regard to the others, it seems best to resort to the
method of proceeding from the later to the earlier evidence and to begin
with the so-called ‘Laws of Henry I.,’ as a Norman though unofficial
view of what Anglo-Saxon custom was or had been before the Conquest.

[Sidenote: When a Norman was killed.]

It may be well to inquire first, what in the view of the writer took
place, after the Conquest, when a Norman or stranger was killed, because
this at once raises the question what should happen in the unavoidable
absence of kindred.

    Si Francigena qui parentes non habeat in murdro perimatur, habeat
    precium natalis ejus qui murdrum abarnaverit: Rex de hundreto
    ubi invenietur xl marc̄ argenti; nisi intra vii dies reddatur
    malefactor justicie regis, et talis de quo possit justicia fieri.…

    (lxxv. 6) If a Norman (_Francigena_) be murdered who has no
    _parentes_, let that person have the price of his birth who made
    known the murder. The King to have 40 marks of silver from the
    hundred where he was found unless within 7 days the malefactor
    be delivered up to the justice of the King in such a way that
    justice can be had of him.…

    Ad patrem vero, non ad matrem, generacionis consideracio
    dirigatur: omnibus enim Francigenis et alienigenis debet esse rex
    pro cognacione et advocato, si penitus alium non habeat.

    (7) Consideration as to birth must be directed to the father, not
    to the mother, for the King ought to be in the place of maternal
    kindred (_cognatio_) and of advocate for the Norman or stranger
    if he absolutely have no other.

    Si ex parte patris parentes non habeat qui occiditur, et ex parte
    matris habeat, quantum ad eum attinet, i. tercia pars weregildi
    sui reddatur.

    (8) If he who is killed has no _parentes_ on his father’s side
    and he has on his mother’s side, let what appertains to her, viz.
    one-third of his wergeld, be paid.

These clauses show that when a Norman or stranger was slain, in a certain
way the king was to stand in the place of the absent kindred to see that
justice was done.

The maternal kindred of the slain, if such were at hand, should receive
the third of the wergeld which pertained to them, and so presumably the
paternal kindred, if they alone were present, should take the two thirds
pertaining to them, the king taking the share of the maternal kindred.
In any case the right of the _parentes_ was recognised when they were
present.

[Sidenote: When the slayer was a Norman.]

Next with regard to the payment of the wergeld in the case of the slayer
being a Norman or a stranger:--

    Si quis hujusmodi faciat homicidium, parentes ejus tantum were
    reddant, quantum pro ea reciperent, si occideretur.

    (8) If any one commit homicide of this kind let his _parentes_
    pay so much wergeld as they would have received if he [the
    slayer] had been killed.

    Si ex parte patris parentes habeat, et ex parte matris non
    habeat, et hominem occideret, reddant pertinentes ei quantum de
    ejus interfeccione reciperent, i. duas partes weregildi sui.

    (9) If he [the slayer] have _parentes_ on his father’s side and
    not on his mother’s and kills a man, they pay for him as much as
    they would have received had he been killed, _i.e._ two thirds of
    the wergeld.

    Si quis autem paterna cognacione carens male pugnet ut hominem
    occidat, si tunc cognacionem maternam habeat, reddat ipsa terciam
    partem were, terciam congildones, pro tercia fugiat.

    (10) If any one who has no paternal relations shall fight so
    wrongly as to kill a man and if he has maternal relations they
    shall pay one-third of the wer, the _congildones_ one-third, and
    for the other third let him flee.

    Si nec maternam cognacionem habeat, reddant congildones dimidiam
    weram, pro dimidia fugiat vel componat.

    If he has no maternal relations the _congildones_ shall pay half,
    and for half he shall flee or pay.

    Si quis occidatur ejusmodi secundum legem pristinam, si parentela
    careat, reddatur dimidium regi, dimidium congildonibus.

    If any such person is killed, then _according to ancient law_, if
    he have no kindred half shall be paid to the King and half to the
    _congildones_.

[Sidenote: Recurrence to Anglo-Saxon custom.]

These clauses are valuable as showing that to meet the circumstances
arising upon the Norman Conquest there was a recurrence as far as
possible to ancient law and Anglo-Saxon custom.

[Sidenote: Protection of the kinless stranger.]

This was not the first time that the difficulty of absence of kindred
had occurred and been formally recognised in England. The early Danish
conquests had made special provisions necessary for the protection of
the kinless stranger. And it was declared that ‘if any one did wrong to
an ecclesiastic or a foreigner as to money or as to life, then should
the king or the eorl there in the land and the bishop of the people be
unto him in the place of a kinsman and of a protector (for _moeg_ and for
_mund-boran_) unless he had another.’[210]

Again, as regards the position of the maternal relations and the
_congildones_ of a stranger, it is clear that the writer of these
so-called laws is copying and adopting what he finds in the Laws of King
Alfred. In ss. 27 and 28 of the latter, in the absence of relatives the
_gegildas_ of the slayer were to pay half the wergeld; and also, in the
absence of relatives of the slain person, his _gegildas_ were to receive
half the wergeld.

In both cases an artificial group of organised comrades, ‘gegildas’ or
‘congildones,’ seems to have been recognised as in part taking the place
of kindred. And the importance of the provision of some such substitute
for protection by the oaths of kinsmen is evident enough when it is
considered that the ordeal of hot iron or water was the recognised
alternative.

On the whole the clauses in these so-called laws relating to Normans
and strangers adhere to the principle of the liability of kindred both
paternal and maternal in cases of homicide, and this is the more
remarkable because long before, especially in the Laws of Edmund, as will
hereafter appear, a very strong tendency had been shown to restrict the
liability in case of homicide to the slayer himself.

In the meantime the attempt to apply the Anglo-Saxon custom as to
wergelds to Normans after the Conquest, taken together with the continued
recognition of the liability of both paternal and maternal _parentes_, is
a very strong proof that the solidarity of the kindred was not altogether
a thing of the past. Tribal custom which at the Norman Conquest could be
applied to the conquering class cannot be regarded as dead.


II. NORMAN VIEW OF WESSEX CUSTOM.

We pass on now to clause LXX. of the ‘Laws of Henry I.’ with the heading
‘Consuetudo Westsexe.’

[Sidenote: Wessex wergeld of twyhynde or villanus and twelve-hynde or
thane.]

The amount of the wergeld according to Wessex law is thus stated:--

    In Westsexa, que caput regni est et legum, twihindi, i. villani
    wera est iiii lib.; twelfhindi, i. thaini xxv lib.

    (lxx. i) In Wessex, which is the capital of the kingdom and of
    laws, the wer of the twyhyndeman, _i.e._ of the villanus, is four
    pounds; of the twelvehyndeman, _i.e._ of the thane, twenty-five
    pounds.

The Anglo-Saxon and Norman lb. of silver was 240_d._, and thus the
twelve-hyndeman’s wergeld of 25 lbs. was the same thing as the ancient
Wessex wergeld of 1200 Wessex scillings of 5_d._ Four pounds was a rough
equivalent of the twyhyndeman’s wergeld of 200 Wessex scillings.

A little further on in the same clause is the following quotation from
Ethelred II.’s compact with Olaf.

    Si Anglicus homo Dacum occidat, liber liberum, persolvat eum xxv
    lib. vel ipse malefactor reddatur, et tantundem reddat Dacus de
    Anglico si eum occidat.

    (lxx. s. 6.) If an Englishman kill a Dane--a freeman a
    freeman--let him pay for him 25 lbs. or the criminal himself
    shall be delivered up. And let the Dane do the same if he kill an
    Englishman.

The English and Danish typical freeman of this clause with his 25
lb. wergeld is clearly recognised in these so-called laws as the
twelve-hyndeman and not the twyhynde man, who, though free, is identified
with the ‘villanus.’

[Sidenote: Wife still belongs to her own kindred in respect of wergeld.]

In further sections of this clause regarding Wessex customs very
important statements are made with regard to the position of the wife
in case of homicide, showing (1) that if she committed homicide her
own kindred were responsible for her crime and not her husband or his
kindred; and (2) that in case of the murder of a wife the wergeld went
to _her_ kindred and not to the husband or his kindred. In s. 12 of this
clause is the following statement:--

    Similiter, si mulier homicidium faciat, in eam vel in progeniem
    vel parentes ejus vindicetur, vel inde componat: non in virum
    suum, seu clientelam innocentem.

    Likewise if a woman commits homicide let it be avenged on her or
    on her children or _parentes_ or paid for from that side, not on
    her husband, or innocent connections.

And in s. 13:--

    Si mulier occidatur, sicut weregildum ejus est reddatur, ex parte
    patris, sicut observamus in aliis. (14) Si pregnans occidatur et
    puer in ea vivat, uterque plena wera reddatur. Si nondum vivus
    sit, dimidia wera solvatur parentibus ex parte patris.

    If a woman be killed, whatever be her wergeld, let it be paid
    _ex parte patris_ just as we have said in other cases. (14) If
    a pregnant woman be killed and her child be living let the full
    wergeld of both be paid. If not yet living let half a wergeld be
    paid [for it] to the _parentes ex parte patris_, [of the child].

The position of the wife under Wessex custom is further shown by the
following:--

    Si sponsa virum suum supervixerit, dotem et maritacionem suam,
    cartarum instrumentis vel testium exhibicionibus ei traditam,
    perpetualiter habeat, et morgangivam suam et terciam partem de
    omni collaboracione sua, preter vestes et lectum suum; et si quid
    ex eis in elemosinis vel communi necessitate consumpserit, nichil
    inde recipiat.

    (ss. 22-23). If the wife survive her husband let her have
    permanently her dower and her ‘maritagium’ given to her by
    written instruments or production of witnesses, and her
    ‘morgengift’ and a third part of all joint acquisition, besides
    clothes and her bed, and let her receive nothing in respect of
    what has been consumed in charity or common necessity.

    Si mulier absque liberis moriatur, parentes ejus cum marito suo
    partem suam dividant.

    If a woman die without children her _parentes_ divide her share
    with the husband.

These statements are valuable evidence that, in regard to the position of
a wife, Anglo-Saxon custom was very nearly the same as Cymric custom and
that of the Bretts and Scots. And they are the more important as stating
in black and white what is only to be inferred from isolated statements
in earlier laws.

We now pass to c. LXXVI., _De precio cujuslibet_, containing information
as to the mode of procedure in the payment of wergeld.

After stating that if a man be slain he is to be paid for according to
his birth, the clause proceeds thus:--

[Sidenote: Sureties for wergeld 8 of paternal and 4 of maternal kindred.]

    Et rectum est ut homicida, postquam weregildum vadiaverit
    inveniat wereplegios, sicut ad eam pertinebit, i. de thaino
    debent dari xii wereplegii, viii de parte patris, et iiii de
    cognacione matris; et cum hoc factum erit, elevetur inter eos pax
    regis in omni weregildo, et debet halsfang primo reddi, sicut
    were modus erit.

    And it is right that the homicide after having given pledge for
    the wergeld should find the wer-pledges pertaining to it.
    From the thane: 12 were-pledges 8 _exparte patris_ and 4 _de
    cognatione matris_, and this done shall be raised among them the
    peace of the king in every wergeld. And first the _halsfang_
    should be paid according to the nature of the wergeld.

Following the case of the twelve-hyndeman a little further we learn
that:--

[Sidenote: Twelve-hyndeman’s halsfang.]

    Twelf-hindus est homo plene nobilis, i. thainus cujus wera est
    duodecies c sol. qui faciunt libras xxv, cujus halsfang sunt cxx
    sol. qui faciunt hodie sol. l. Et non pertinet alii cognacioni
    pecunia ista, nisi illis qui sunt intra genu.

    The twelve-hyndeman is the man _plene nobilis_, _i.e._ the thane
    whose wergeld is 1200 scillings which make 25_l._ His halsfang is
    120_s._ which today equals 50_s._[211] [Norman], and it belongs to
    no other relations than those who are _intra genu_.

This halsfang had to be paid on the 21st day from the giving of the
pledge, and it seems to have been a token in recognition of guilt or
earnest money to show that the wergeld would be paid.

[Sidenote: Manbot and fightwite and then wergeld.]

On the next 21st night from the payment of the halsfang the _manbot_ had
to be paid, and on the 21st night after that the _fightwite_, and on the
21st night again the first payment of the wergeld.

    Et sic omnibus parentibus dominisque emendacionibus iniciatis
    persolvantur reliquum were, intra terminum quem sapientes
    instituunt.

    Thus for all the _parentes_ and lords, amends being set agoing,
    the rest of the wergeld shall be paid during a term to be fixed
    by the wise men (_sapientes_).

Turning next to the case of persons twyhynde born--_cyrlisci vel
villani_--more details are given:--

After stating their wergeld to be four pounds, the clause proceeds:--

[Sidenote: Halsfang of the twyhynde class.]

    Halsfange ejus sunt v marc. que faciunt xii sol. et vi den.: est
    autem verbum Anglicum quod Latine sonat ‘apprehensio colli.’

    Their halsfang is v marks which = 12_s._ 6_d._; and it is an
    English word which in Latin means ‘_apprehensio colli_.’

There is evidently here an error. ‘V marc’ ought to be read 5 _mancuses_.
The mancus was 30_d._ or 2_s._ 6_d._ Norman money and the halsfang
therefore 150_d._ or 12_s._ 6_d._ Norman money, as stated in the
following clause.

[Sidenote: Manbot and fightwite and then wergeld.]

    Si quis ad iv lib. persolvendus occidatur, et ad id res veniat,
    ut precio natalis ejus componendus sit, primo debent reddi xii
    sol. et vi den. et in wera numerari: reddantur vero patri, vel
    filio, vel fratri, vel qui propinquior est de patre, si predictos
    parentes non habeat: si omnes istos habeat, et ipsi dividant
    inter se.

    (6) If any one is killed to be paid for at 4_l._ and it comes to
    pass that the price of his birth has to be paid, first should
    be paid [the halsfang of] 12_s._ 6_d._ to be reckoned in the
    wergeld, and this is paid to the _father or son, or brother_, or,
    failing these, whoever is the _nearest of kin to the father_. If
    he has all these, they divide it between them.

    A die qua wera vadiata est in xxi diem, sine omni excusacione et
    dilacione, debet halsfang reddi, sicut premisimus.…

    On the 21st day from the giving of the pledge, without any excuse
    or delay the halsfang should be paid, as we have said.…

    Inde ad xxi diem reddatur ipsius manbota: tunc ad xxi diem
    fuytwhita: inde ad xxi diem reddatur ipsius were frumgildum, i.
    vii sol. et vi den. ad explecionem xx sol.

    On the 21st day after that, is to be paid the _manbot_, then on
    the 21st day the _fightwite_, and then on the 21st day must be
    paid the _frumgeld_ of the wergeld, _i.e._ 7_s._ 6_d._, to the
    completion of 20_s._

Thus we learn that in the case of the twy-hyndeman the halsfang of 12_s._
6_d._ and the frumgeld of 7_s._ 6_d._ make up the first 20_s._ of the
wergeld of four pounds. The clause proceeds:--

    Inde componat qui weram solvit, terminum de xx sol.: inde ponant
    terminum suum parentes mortui de xl ovibus, que pro xx sol.
    computantur: sint autem oves videntes et cornute, nulla parte
    corporis diminute: ultimo termino reddatur equus, qui pro xx
    sol. numerandus est. Hoc secundum legem et nostram consuetudinem
    diximus: differentia tamen weregildi multa est in Cancia
    villanorum et baronum.

    After that he who pays the wergeld pays at another term 20_s._
    Then the _parentes_ of the dead fix a term for 40 sheep which are
    reckoned as 20_s._, but they must be sheep seeing and horned and
    deficient in no part of the body. At the last term a horse is
    given reckoned at 20_s._ This we have said according to law and
    our custom. There is, however, great difference in the wergeld of
    both _villani_ and _barones_ in Kent.

Thus both in the case of the twelve-hynde and the twy-hyndeman the
halsfang is the first beginning of the wergeld, and whatever may be the
exact meaning of the word, it is pretty evident that it was regarded as
an admission of the wrong done and as a kind of earnest money that the
rest of the wergeld would be paid.

But between the halsfang or earnest money and the making up of the first
full instalment of the wergeld were the two other payments, the _manbot_
and the _fightwite_.

They have already been mentioned, but it is important to recognise what
these two payments outside the wergeld mean.

We learn from c. LXXX. s. 6 what the fightwite was:--

[Sidenote: Fightwite was for breach of precinct.]

    In cujuscumque terra fiat homicidium, qui socam et sacam suam
    habeat, si homicida divadietur ibi vel cravetur, fihtwytam
    recipiat.… Si occisus et locus unius domini sint, qui socnam suam
    habeat manbotam et fihtwytam.

    On whosesoever land the homicide may be committed, he who has
    soc and sac shall if the homicide there be pledged or remanded
    receive fightwite.… If the person killed and the place are of one
    lord, let him who has the soc have [both] manbot and fightwite.

[Sidenote: Manbot was value to lord of person slain.]

It is clear from this that the fightwite was the payment due to the
lord who had the ‘soc’ of the place where the homicide occurred and the
wergeld was pledged. The manbot, on the other hand, was the payment to
the lord whose man the person slain was. The lord of the soc might also
be the lord of the man slain, in which case both fightwite and manbot
were payable to him.

In c. LXIX. the manbot of the twy-hyndeman is stated to be 30_s._ (of
5_d._, _i.e._ 150_d._), and that of the twelve-hyndeman 120_s._ (600_d._)
as in the Laws of Ine, s. 70.

In the so-called ‘Laws of Edward the Confessor’ c. XII. is the
following:--

    Qui scienter fregerit eam [pacem regis] … lege Anglorum suum
    were, i. precium suum, et manbote de occisis erga dominos quorum
    homines interfecti erant. Manbote in Danelaga, de vilano et de
    socheman, xii oras; de liberis hominibus iii marcas. Manbote in
    lege Anglorum, regi et archiepiscopo, iii marc̄ de hominibus
    suis; episcopo comitatus, comiti comitatus, et dapifero regis, xx
    soƚ; baronibus ceteris, x soliđ. Emendacionem faciat parentibus,
    aut guerram paciatur, unde Angli proverbium habebant: Biege spere
    of side oðer bere, quod est dicere, lanceam eme de latere aut fer
    eam.

    He who knowingly breaks the king’s peace … by the law of the
    English pays his were, _i.e._ _pretium suum_, and _manbot_ of
    persons killed to the lords whose men have been killed. Manbote
    in Danelaga of villanus and socheman xii ores, of _liberi
    homines_ iii marks.[212] Manbot in English law to the king and
    archbishop iii marks for their men; to the bishop and earl of
    a county and _dapifer_ of the king xx_s._: other barons x_s._
    Let him make amends to the _parentes_ or suffer feud. Hence the
    English have a proverb, ‘Buy off the spear or bear it.’

This chapter relates chiefly to the breach of the king’s peace on the
king’s highways &c., but it clearly confirms the meaning of the _manbot_
as the payment to the lord for his man and as quite distinct from the
wergeld to the _parentes_ of the slain.

[Sidenote: Manbot of socheman and villanus alike in the Danelaga.]

It may seem strange at first sight that according to this clause the
manbot in the Danelaga of the villanus and the socheman should be alike,
viz. 12 ores of silver, and further that the villanus and socheman should
not be included as _liberi homines_, the manbot of the latter being
double their manbot, viz. three marks or 24 ores.

       *       *       *       *       *

The explanation of the equal manbot of villani and sochemen may partly
be found in the tendency after the Conquest to class together all
subordinate tenants rendering manual or agricultural services to the
landlord as villani, and to ignore the differences in origin between the
various classes of tenants of this kind. Still if at this point of our
inquiry the relative positions of the sochmanni of the Danish districts
and the villani of ordinary English manors were the question under
discussion, it would be fair in explanation of the equality in manbot to
point out how very nearly the services of the two classes seem to have
corresponded so far as their value to the lord was concerned.[213]

The loss to the lord of the twelve-hyndeman was probably reckoned as of
greater money value than that of the villanus or socheman, because of
the higher grade or character of his military and judicial services as
compared with the agricultural services of the villanus and socheman.

However this may be, these considerations confirm the importance of the
distinction between the _manbot_ which varies according to the value or
loss to the lord of the person slain, and is therefore payable to him,
and the wergeld payable to the _parentes_ of the person slain which
varied according to the grade in social rank in which he was born or to
which he may have sometimes risen.

Further, this distinction between the wergeld and the manbot becomes all
the clearer when we turn to the evidence given in the Laws of Henry I.
regarding the custom of Wessex in respect of the homicide of slaves.

[Sidenote: When a slave is killed, or kills an Englishman.]

In c. LXX. the custom of Wessex is stated thus:--

    Si servus servum occidat, domino reddantur xx sol. pro manbota,
    parentibus interfecti servi xl den.

    (s. 2) If a slave (_servus_) kills a slave xx_s._ [? of 5_d._]
    is paid to the lord for _manbot_, to the _parentes_ of the dead
    slave xl_d._

    Si dominus occisoris nec pro eo reddit, nec servus habet unde
    reddat, dimittere potest eum dominus, ut sibi caveat, nisi forte
    cravetur dum secum est; quod si eveniat, eum repetentibus reddat
    vel inde componat.

    (s. 3) If the lord of the slayer pays nothing for him and the
    slave has nothing to pay with, the lord can dismiss him so that
    he [the lord] may protect himself from having the slave seized
    while with him. But if this happen he shall hand him over to the
    prosecutors or pay for him.

    Si liber servum occidat, similiter reddat parentibus xl den. et
    duas mufflas, et unum pullum mutilatum, domini servi xx sol. pro
    manbota blodwitam vel fihtwitam sicut acciderit.

    If a freeman kill a slave let him likewise pay to the _parentes_
    xl pence and two ‘muffles’ and a capon. To the lord of the slave
    xx_s._ [? of 5_d._] for manbot, [also] bloodwite or fightwite as
    it happens.

    Si servus Waliscus Anglicum hominem occidat, debet ille cujus
    servus est reddere eum domino et parentibus, vel dare xl sol.
    pro vita sua. Si hoc capitale nolit dare pro eo, dimittat eum
    liberum, solvant postea parentes ejus weram illam, si cognacionem
    habeat liberam. Si non habeat, observent eum inimici. Non cogitur
    liber cum servo meggildare, nisi velit ei satisfaccionem facere,
    nec servus cum libero.

    If a _slave Waliscus_ kills an Englishman he whose slave he is
    ought to give him up to the lord and the _parentes_ or pay
    xl_s._ [? of 5_d._] for his life. If he does not choose to pay
    this for his head let him set him free; then afterwards let his
    _parentes_ pay his wergeld if he has free relations. If not
    let them regard him as an enemy. No freeman is to be compelled
    to join in payment with a slave unless he wishes to make
    satisfaction for him nor a slave with a freeman.[214]

[Sidenote: Manbot of Wessex slave.]

Thus while under the Danelaga the equal manbot of the villanus and of the
socheman was 12 ores or 240_d._, we learn from these clauses that the
manbot of the ordinary slave under Wessex custom was 20_s._ _i.e._ (if of
5_d._) 100 pence, while that of the twy-hyndeman was, as we have seen,
only 150 pence.

At first sight it may seem strange that the manbot or value to the lord
of his villanus or socheman should be no greater, or even less, than
that of his theow or slave. But a moment’s consideration will show that
the value of the villanus and the socheman to the lord was mainly their
week-work and services amounting to perhaps half their whole time, while
that of the slave or theow was the value of his whole time and also that
of a marketable chattel.

It may be noticed, too, how in the statements of Wessex custom some
slight recognition is made of the _kindred_ of the slave, but the amount
(40 pence) is so very small that it hardly can be reckoned as any real
approach to recognition of family rights or rights of kindred belonging
to the relatives of the slave.

In the ‘Laws of William the Conqueror’ the manbot of the slave is stated
(perhaps in error) to be twice that of the freeman, and in the case of
freemen a concession is made of 10_s._ of the wergeld to the _widow_ of
the slain, who otherwise, not being of the same blood or kindred with her
husband, would under tribal custom have received no part of the wergeld.

    Si quis convictus vel confessus fuerit in jure, alium occidisse,
    dat were suum, et insuper domino occisi, manbote, scilicet, pro
    homine libero x sol. pro servo xx solid.

    (s. vii.) If any one shall have been convicted of or have
    confessed the slaying of another, let him give his wergeld and
    over and above to the lord of the person slain, _manbote_: that
    is, for a freeman x_s._ [? of 5_d._ or 12_d._] for a _servus_ xx
    shillings.

    Est autem were theni in Merchenelahe xx libr.; in Westsaxenelahe
    xxv libr.; rustici autem c solid. in Merchenelahe, et similiter
    in Westsaxenelahe.

    (viii.) The wergeld, however, of the thane under Mercian law is
    xx lb. [_i.e._ 1200_s._ of 4_d._], under West Saxon law xxv lb.
    [_i.e._ 1200_s._ of 5_d._]; of the rustic c_s._ [? of 5_d._ or
    12_d._] in Mercia and the same in Wessex.

    De were ergo pro occiso soluto, primo vidue x sol. dentur, et
    residuum liberi et consanguinei inter se dividant.

    (ix) Of the wergeld thus paid for the slain person, first let x
    shillings be given to the widow, and the rest let the children
    and relations divide between them.

[Sidenote: Homicide of a kinsman.]

Finally, it is interesting to observe that according to the so-called
‘Laws of Henry I.’ tribal custom was still partly recognised in the
method of dealing with the homicide of a kinsman.

In clause LXXV. is the following:--

    Qui aliquem de parentibus suis occidet, dignis apud Deum
    penitencie fructibus emendet; et in modo penitencie sit, si
    sponte vel casu perpetravit; et excidat emendacio patrini sicut
    manbota domini: si non pertineat ei utrumque, et aliorum
    importunitate, quorum consanguineus est, cogatur eum reddere,
    sapientum hoc judicio, secundum genus, componatur.

    He who shall slay any one of his _parentes_, let him make amends
    by fruits of penitence worthy before God. And let the measure of
    the penance be according to whether he did it willingly or by
    accident. And the correction of the sponsor falls just as the
    manbot of the lord. If there does not pertain to him either the
    one or the other and by the importunity of others whose kinsman
    he is he shall be compelled to pay, let it be compounded for by
    judgment of wise men whatever that may be.

The homicide of a kinsman was apparently still generally free from
judicial interference or criminal law. The slayer is handed over to the
Church and his punishment is spiritual penance. Even the manbot to the
lord who has lost a man through his crime fails to be paid. But should
there be a fear of trouble through the importunity of any of the kinsmen
of the slain demanding compensation, then a compromise was to be effected
by reference to the judgment of wise men. Tribal feeling is evidently
not yet dead, although beginning in this matter to yield to the more
modern view of individual responsibility for crime without regard to the
question of kindred. There is at the same time recognition of the fact
that the weakened tribal feeling is no longer always able to restrain the
kinsmen from revenge in the case of wrong done within the kindred.




[Illustration]




CHAPTER XI.

_DANISH VIEW OF ANGLO-SAXON CUSTOM._


I. THE ‘DE INSTITUTIS LUNDONIE’--OF CNUT (?)

[Sidenote: Fresh point of view.]

Having thus tried to obtain, from the so-called ‘Laws of Henry I.’
(whatever they may be), a Norman view of Anglo-Saxon custom, we recognise
that on some points we may have learned more from this Norman view than
could directly have been learned solely from the earlier Anglo-Saxon laws
themselves.

The reason of this is obvious. Special laws issued at various times
by Saxon kings do not profess to cover the whole ground of existing
and well understood custom. Rather should special laws be regarded as
modifications of custom made necessary at different periods by new
circumstances. Thus no one of the sets of laws can be expected to give a
general view of custom as a whole.

It is not strange, then, that we should owe some knowledge of early
Anglo-Saxon custom to the Norman Conquest and the necessity after such
an event to collect in a more connected and intelligible form what had
formerly to some extent been matters of custom and tradition. And so it
may be that our next chance of learning more may be found in the study
of the documents and fragments belonging to the period of the Danish
invasion of England, and especially the moment of transition from the
English rule of Ethelred II. to the Danish rule of Cnut.

[Sidenote: Danes and English live under their own laws. Danish law
assumed to be well known.]

The founding of the Danish kingdom of Cnut was an epoch in English
history, and indeed in the history of Europe. It was followed _inter
alia_ by the legalisation in England of Scandinavian monetary reckoning
in marks and ores which had already for some time been in use side by
side with the English reckoning in scillings and pounds. And this was
typical of the general position of things. In full coincidence with
the working of tribal feeling in other countries, into the idea of
conquest the amalgamation of the two peoples into one did not enter.
Danes continued to live under their laws and the English under theirs,
as Franks and Gallo-Romans did under Frankish rule. Certain things were
enjoined upon both, but with a difference. It often happens that in
documents of this period the ‘law of the English’ is specially explained
while the Danish law is referred to as already known, thus revealing a
Danish point of view.

In the Laws of Ethelred II. (s. 37) it is enacted that if anyone should
be charged with plotting against the king, he must ‘clear himself with
the threefold ordeal by the law of the English, and by the law of
the Danes according as their law may be.’ And so in the Laws of Cnut
penalties are stated as so many scillings by English law and by Danish
law ‘as it formerly stood.’[215]

So that, from the Danish point of view, it was sometimes a matter of
inquiry and record what the English law had been, while knowledge of
Danish law was mostly taken for granted.

       *       *       *       *       *

[Sidenote: London under Cnut a port of the ‘greater Scandinavia.’]

With regard to the coinage this was only partly the case. Not that
Anglo-Saxon reckoning in pounds and scillings was abolished or that
Danish currency was thenceforth the only one allowed. But, Cnut
having styled himself ‘King of all England and King of the Danes and
Norwegians,’ London had become in one sense a Scandinavian port.

The large sums paid to ‘the army’ by Ethelred for respite and peace had
flooded Scandinavia with English silver money of his coinage.

This was so to such an extent that while the British Museum is rich in
the coins of Ethelred, still more of them are to be found in Scandinavian
museums.[216] And one marked result of the increased intercourse with
England was an increase also in the Scandinavian coinage, the type of
which was chiefly taken from the coins of Ethelred II.[217]

London had become to some extent the commercial capital indirectly of
what has been happily called the ‘Greater Scandinavia.’

In the words of Mr. Keary:[218] ‘The Greater Scandinavia, with older
countries, included (counting from the East to the West) a large district
in the North and West of Russia extending from Kiev to Lake Ladoga. It
included Sweden, Norway, Denmark and a strip of land in North Germany
(Mecklenburg), Northern England, Man, most of the Western Scottish
Islands, the Orkneys and Shetlands … settlements in Ireland and colonies
in the Faroes and Iceland--a stretch of territories inhabited by peoples
closely allied in blood, in speech, and in customs.’

       *       *       *       *       *

Was it likely, then, that Cnut in making London the commercial capital of
his kingdom should adopt the English monetary system unchanged, without
regard to that in use in the North?

Happily, in the document known as the ‘De Institutis Lundonie’ we have
an interesting glimpse into the conditions of the port of London, and in
its final clause definite reference to the legalisation of the Danish
currency.

[Sidenote: The commerce of London.]

This document has hitherto been placed doubtfully under the reign of
Ethelred II. with some others of about the same period, but there is no
evidence to show that it should be so placed rather than under the reign
of Cnut. It exists only in Latin and it contains no mention of Ethelred,
while its final clause becomes intelligible only, I think, if regarded as
enacted after the accession of Cnut.

We learn from the document that Aldersgate and Cripplegate were the two
gates which had guards.

Billingsgate, being on the river, was treated as a port. Boats on arrival
paid toll according to size, smaller ones a halfpenny, boats with sails
one penny, ‘a _ceol vel hulcus_’ fourpence if it should lie there. Ships
laden with wood paid ‘one timber’ from their cargo. Those coming with
fish to the bridge also paid toll.

Men from Rouen, with wine or whale, paid six shillings per ship and the
twentieth lump of the whale.

Men of Flanders, Normandy, and France declared their cargoes and paid
toll. Goods overland through Holland and Belgium were also examined and
paid toll. Men of the Emperor who came in their ships were to be held
worthy of the same good laws as ‘our people (_sicut nos_).’

From this it would appear that a good deal of the trade from the Baltic
was an overland trade and in Frankish hands. The ‘men of the Emperor’ who
were treated on equal terms with ‘our people’ were probably the merchants
whose successors ultimately established the Hanseatic towns and two or
three centuries later the Hanseatic league.

[Sidenote: Cnut’s ores of 16_d._ or 1/15 of the pound.]

The final clause is as follows:--

    (9) Et ut monetarii pauciores sint, quam antea fuerint: in omni
    summo portu iii, et in omni alio portu sit unus monetarius:

    And that there be fewer moneyers[219] than there formerly were,
    in every chief town iii and in every other town let there be one
    moneyer.

    et illi habeant suboperarios suos in suo crimine, quod purum
    faciant et recti ponderis, per eandem witam, quam prediximus.

    And let them have their sub-workers under their responsibility,
    so that they make pure [money] and of right weight, under the
    penalties aforesaid.

    Et ipsi qui portus custodiant, efficiant per overhirnessam meam,
    ut omne pondus sit marcatum ad pondus, quo pecunia mea recipitur
    et eorum singulum signetur ita, quod xv oræ libram faciant.
    Et custodiant omnes monetam, sicut vos docere praecipio [?
    praecepto], et omnes elegimus.

    And let those who have charge of the towns secure, under
    penalties, that every weight shall be marked at the weight by
    which my money is received, and that each of them is so signed
    that xv ores make a pound. And let all maintain the coinage in
    accordance with the orders we have chosen to enjoin upon you and
    all men.

This clause has already been alluded to in connection with the ‘Laws of
the Bretts and Scots.’ The ore of sixteen pence in which the payments of
those laws were to be made was the ore described in this clause, for the
ore of one fifteenth of the pound was the ore of sixteen pence.

The wording of the clause is very distinct. There were to be _monetarii_
(mintmen) at the several mercantile centres, one at each lesser town and
at the chief towns three. And every weight used by them was to be marked
to the weight at which ‘my money’ was received and every one of the
weights was to be marked ‘_so that fifteen ores make a pound_.’

The pound was no doubt the Frankish and English pound which since the
time of Charlemagne and Offa contained 7680 wheat-grains and was divided
according to English reckoning into twelve ounces of 640 wheat-grains or
twenty-pence of 32 wheat-grains. The Danish ore of one fifteenth part of
the pound was therefore of 512 wheat-grains or sixteen pence.

And there is good reason to believe that this ore was the ore in general
use in Scandinavian commerce. We have seen that the Scandinavian ore,
like the Merovingian ounce, when reckoned in wheat-grains was the Roman
ounce of 576 wheat-grains, but that in actual weight it had sunk below
the Roman standard. The ‘ortug’ or stater had apparently in actual
weight fallen back to the weight of the stater of the ancient Eastern
or Merovingian standard, viz. 8·18 grammes, so that the ore or ounce of
three ortugs of this weight would weigh 24·54 grammes. And this was
almost exactly one fifteenth of the Anglo-Saxon pound.[220]

We may therefore with some confidence regard the ore legalised by Cnut
for commercial use as practically identical in weight of silver with the
ore of three ortugs in use in the Baltic and generally in Scandinavian
trade.

[Sidenote: Cnut divides his ore into 20 light pence.]

Moreover, when we turn to the actual coinage of Cnut we find that by
a sweeping change he reduced the weight of the silver penny from one
twentieth of the Anglo-Saxon ounce to apparently one twentieth of this
ore, intending, it would seem, to make his ore pass for payments as an
ore of 20 pence instead of 16.[221]

When these facts are taken together, we can hardly, I think, be wrong
in assigning the ‘De Institutis Lundonie’ to the time of the foundation
of the Danish kingdom by Cnut and in considering its final clause as
recording the legalisation of the Danish monetary system with its marks
and ores for use in England and for purposes of international trade.
The fact that the ‘ore of sixteen’ was in use not only in the ‘Laws of
the Bretts and Scots’ but also in the Domesday survey, _e.g._ in the
district between the Mersey and the Ribble, is a lasting proof of its use
wherever Scandinavian conquest and commerce extended, possibly before and
certainly long after it was legalised for English use by Cnut.


II. FRAGMENT ‘OF “GRITH” AND OF “MUND.”’

Having gained from the ‘De Institutis Lundonie’ some sense of the
greatness of the change to England consequent upon the accession of Cnut
and also of the importance of England to Cnut’s Scandinavian kingdom, we
may now turn to the consideration of certain documents which seem to be
attempts made during this period of change to realise and record what had
been Anglo-Saxon custom.

[Sidenote: Mund-bryce of the king and of the Church five pounds.]

The first clauses of Cnut’s Church laws refer to the maintenance of the
rights of the Church as to ‘grith and frith.’[222] ‘Because God’s grith
is of all griths the best, and next thereto the king’s, it is very right
that God’s church-grith within walls and a Christian king’s hand-grith
stand equally inviolate,’ so that anyone infringing either ‘shall forfeit
land and life unless the king be merciful to him.’[223] A homicide within
church walls was to be ‘botless,’ unless the king ‘granted life against
full bot.’ In this case the homicide must pay his full _wer_ to Christ or
the king, as the case might be, and so ‘inlaw himself to bot.’ Then the
bot was to be the same as the king’s ‘mund-bryce’ of five pounds.

These clauses seem to be taken from another document of this period,[224]
headed ‘Of Church grith,’ which is printed by Thorpe among the Laws of
Ethelred.

Again, the laws decreed by Ethelred and his witan at Wantage[225]
respecting ‘frith-bot’ commence with the decree that ‘grith should
stand henceforth as it originally stood in the days of his [the king’s]
forefathers.’ So that again ancient custom is confirmed rather than new
law enacted.

[Sidenote: The grith of various moots.]

This decree of Wantage relates, not, like Cnut’s law, to the grith of
the Church, but to the grith of various assemblies or courts. Crimes
committed within the grith or peace given by the king’s own hand (that
is, the king’s ‘hand-grith’ of the other documents) is again _botless_.
The grith which the ealdorman and the king’s reeve give in the assembly
of the ‘five-burgs’ if broken involves a bot of 1200 (scillings?),
that given by a burh-assembly 600, that by a wapentake 100, that in an
alehouse ‘for a dead man vi half-marks and for a living one xii ores.’

In a further clause (s. 12) it is stated that in a king’s suit the
deposit or ‘wed’ was to be of vi half-marks, in an eorl’s and a bishop’s
of xii ores, and in a thane’s of vi ores. Here both English and Danish
currencies are used. The law is common to both peoples.

       *       *       *       *       *

The principle of the ‘grith’ or ‘frith’ is alike for both English and
Danes, and it does not seem that Cnut had any intention of altering what
had been law in this respect under his English predecessor.

[Sidenote: Grith-bryce and mund-bryce the same thing.]

In s. 3 of Cnut’s Church laws, dealing with crimes less than homicide, he
seems to treat the ‘grith’ of his new law and the ‘mund-bryce’ of old law
as practically the same thing, and this clause according to the text of
MS. G.[226] contains an interesting allusion to Kentish as well as other
English law.

    Heafod mynstres griðbryce is æt bot wyrþum þingū be cinges munde.
    ꝥ is mid · v · pundum on Engla lage ⁊ on cent lande æt þā mund
    bryce · v · pund þā cingce. ⁊ þreo þā arceƀ. ⁊ medemran mynstres
    mid · cxx · scill. ꝥæ is be cingres wite. ⁊ þonne gyt læssan þær
    lytel þeowdom sig ⁊ leger-stow þeah sig mid lx scill. and feald
    cyricean þær leger-scow ne sig mid xxx scyll.

    The grith-bryce of the chief minster in cases entitled to bot
    is according to the King’s mund, that is v pounds by English
    law _and in Kent for the mund-bryce v pounds to the King_, and
    three to the archbishop, and of a minster of the middle class cxx
    scillings, that is according to the King’s wite, and of one yet
    less where there is little service, provided there be a burying
    place, lx scillings and of a field church thirty scillings.

Further, there is a separate document belonging to this period entitled
‘Of _Grith_ and of _Mund_’[227] which seems to have been a careful
statement of what ‘formerly’ had been law among the English, the Kentish
people, the South Angles, and the North Angles respectively.

[Sidenote: Reference to Kentish law.]

It is too long to be quoted at length. It states again that ‘God’s
grith is of all griths’ of the first importance, and ‘next thereto the
king’s.’ ‘Formerly among the English,’ when a man fled for his life to
the king, the archbishop or the ætheling, he had nine days’ ‘grith.’ If
he sought a bishop or ealdorman he had seven days’ ‘grith.’[228] Then
it goes on to state that in the law of the _Kentish_ people ‘the king
and the archbishop had a like and equally dear _mund-bryce_,’ while
the archbishop’s property according to Kentish law was compensated for
elevenfold and the king’s ninefold, though ‘the mund-byrd of Christ’s
Church was the same as the king’s.’[229]

[Sidenote: Grith-law of South Angles.]

Next the ‘grith-law’ of the _South Angles_ is described. The king’s
mund-bryce is stated again to be five pounds by the law of the English;
an archbishop and an ætheling’s mund-bryce three pounds; other bishops’
and an ealdorman’s two pounds: and if any one fight in the presence of an
ætheling or archbishop the bot was cl scillings, if in that of another
bishop or ealdorman c scillings.

[Sidenote: Law of North Angles.]

Lastly, the document records that in the _North Angles’_ law ‘it stands
that he who slays any one within church walls shall be liable in his
life, and he who wounds shall be liable in his hand: and let him who
slays any one within church doors give to the church cxx scillings,
according to the North-Angles’ law. And let a freeman who harms a living
person in his “mund-byrd” pay xxx scillings.’

[Sidenote: Borh-bryce.]

In s. 59 of the secular laws of Cnut under the heading ‘Of Borh-bryce’
is a statement that if any one break the king’s ‘borh’ the bot is
five pounds; an archbishop’s or ætheling’s ‘borh’ three pounds; a
leod-bishop’s or ealdorman’s ‘borh’ two pounds. This is a re-enactment
of clause 3 of King Alfred’s dooms. In the latter the words ‘borh-bryce’
and ‘mund-byrd’ appear to be interchangeable. Both mean the breach of
protection or _mund_.

[Sidenote: Extent of the area of the grith.]

There is finally a fragment[230] which fixes the extent of the king’s
‘grith’ to be ‘three miles and three furlongs and three acre breadths and
nine feet and nine hand breadths and nine barleycorns from the “burhgeat”
where the king is.’

Within this area the ‘grith’ or protection of the king extends, and
the use of the word ‘grith’ seems to place this fragment among those
belonging to the Danish group.

In this ‘grith’ or _area_ of protection, taken together with the grith of
various persons in regard to the _duration_ of the protection, and the
grith of the various assemblies or courts, and, finally, in the _mund_ of
various persons marked by the amount of the _mund-bryce_, there is surely
a foundation in ancient custom for the jurisdiction involved in the sac
and soc of the later period.

[Sidenote: The soc and sac of later laws.]

We have seen in the clauses of the so-called Laws of Henry I. allusion
to the ‘sac and soc’ of the lord on whose land a homicide has been
perpetrated and under whose jurisdiction the wed or pledge has been given
for the payment of wergeld. According to earlier phraseology, the lord’s
grith or peace has been broken. He has a territorial jurisdiction over
the giving of the wed by which it is to be restored, and he is entitled
to fightwite accordingly. If his own man has been slain, whether on his
own land or not, his _mund_ has been broken and the manbot of his man
is payable to him. The phrase ‘soc and sac’ is probably of Scandinavian
origin. It does not seem to go back earlier than the time of Cnut.[231]
It is not found in his laws. But the principle at the root of the ‘grith’
and the ‘mund’ was not one newly introduced at this period. We shall find
it again in the earliest laws, and we have already found it at work under
Irish custom. The Irish chieftain’s ‘precinct’ or area of protection
extended on his ‘green’ as far as he could throw his hammer, and the
value of his protection varied, as we have seen, with his ‘honour price.’


III. THE ‘FRITH’ BETWEEN ETHELRED II. AND OLAF TRYGGVASON, A.D. 993.

[Sidenote: Frith of A.D. 993.]

The real Danish invasion of England, which ended in the accession of
Cnut to the kingdom of all England, commenced with the arrival of Olaf
(Tryggvason), afterwards King of Norway, in A.D. 991. The fatal battle of
Malden had been fought and 10,000 pounds of silver paid for a temporary
peace. At length the treaty was made between Ethelred and Olaf on the
latter embracing Christianity.

[Sidenote: Freeman’s wergeld 25 pounds of silver. Slave valued at one
pound.]

The article on homicide in this ‘_frith-mal_’ is the only one which need
be quoted here:--

    Gif Englisc man Deniscne ofslea, frigman frigne, gylde hine mid
    xxv pundum oþþon mon þone hand-dædan agyfe, ⁊ do se Denisca þone
    Engliscan eal swa gif [he] hine ofslea. Gif Englisc man Deniscne
    þræl ofslea gylde hine mid punde ⁊ se Denisca Engliscne eal swa
    gif he hine ofslea.

    If an Englishman slay a Dane, a freeman a freeman, let him pay
    for him with xxv[232] pounds, or let the slayer be delivered up.
    And let the Dane do the same by an Englishman if he slay him. If
    an Englishman slay a Danish thrall let him pay for him with a
    pound; and so a Dane in like manner, by an Englishman if he slay
    him.

[Sidenote: The freeman is the twelve-hyndeman.]

The points to be noted here are these. It is for the crime of a freeman
slaying a freeman that the wergeld of twenty-five pounds is to be
paid. And this wergeld of twenty-five pounds of silver is the wergeld
of 1200 Wessex scillings. So that the freeman of this clause is the
twelve-hyndeman.[233]

For the purpose of this ‘frith’ between Ethelred and Olaf the
twelve-hyndeman and not the twy-hyndeman is the typical freeman. And the
Dane also is to be paid for by a twelve-hyndeman’s wergeld.

The twy-hyndeman escapes without notice. No class is mentioned between
the twelve-hynde freeman and the thrall; and the thrall whether Danish or
English is paid for with a pound of silver.

Finally, the compact is described in Anglo-Saxon pounds, not in Danish
marks and ores.

It is an English statement of the ‘frith’ between the English king and
‘the army that Anlaf (Olaf) and Justin and Guthmund, Stegita’s son, were
with.’ And accordingly at the end of clause 7 is recorded the humiliating
admission that ‘twenty-two thousand pounds of gold and silver were given
to “the army in England for the frith.”’




[Illustration]




CHAPTER XII.

_ANGLO-SAXON CUSTOM FROM THE VIKING OR NORTHMEN’S POINT OF VIEW._


I. THE COMPACT BETWEEN KING ALFRED AND GUTHRUM, A.D. 886.

[Sidenote: The earlier Danish or Viking invasions.]

At the date of the compact between Ethelred II. and Olaf Tryggvason more
than a century had passed since the earlier compact between Alfred and
Guthrum. And during that century the successors of Alfred had gradually
succeeded in recovering their hold upon the English nation. During the
whole of this time, following Continental tribal usage, both English and
Danes had presumably lived under their own laws and customs.

But whether it be right to speak of the Northmen of the time of King
Alfred as Danes or not, it is necessary to distinguish the difference
between the two invasions.

Cnut’s invasion was avowedly intended to establish a kingdom, or rather
to bring England within the area of his great Danish kingdom. Olaf was
on the point of making himself King of Norway; and the founding of
kingdoms was, so to speak, in the air. It was an era of conquest and
Cnut’s invasion of England was in fact the first step towards the Norman
Conquest.

The Vikings who invaded England in the days of Alfred, on the other hand,
were independent chieftains--the last of the class of the early Frankish
and Anglo-Saxon type. Their invasion was not a Danish invasion in the
sense that it came from a Danish kingdom. The Vikings of this earlier
period were chieftains of moving armies living upon the country they
invaded. Their armies were composed of Northmen, and, again to quote the
words of Mr. Keary, ‘in the history of the Scandinavian nations they
were the representatives in the countries of their origin of a bygone or
passing order of things’--‘the opponents of the extended sort of kingship
which was the new order of the day in Denmark, Sweden, and Norway.’[234]

Let us for a moment follow the course of the movements of these Viking
armies which preceded the compact between Alfred and Guthrum.

In 867 the ‘army’ was in the North, took possession of York, and subdued
Northumbria. In 868 Mercia was invaded, and till 871 the incursions were
practically confined to Northumbria and Mercia, and parts of East Anglia.
In 871 the invasion of Wessex commenced, and in the same year Alfred,
on the death of his brother Ethelred, became King of Wessex. In 874 the
‘army’ was again chiefly in Mercia and Northumbria and began definitely
to settle in the latter. The southern half of Northumbria became the
Kingdom of York under Halfdan, A.D. 876.

The other part of the army under Guthrum proceeded to attack Wessex, and
the winter of 877-8 was marked by the retirement of Alfred into the
island of Æthelney.

[Sidenote: Compact between Alfred and Guthrum.]

In 878 came the victory of Æthandune, which was followed by the baptism
of Guthrum and the partition of England. In 880 Guthrum and his army
settled in what became the Danelaga. And in 886 the final compact was
entered into between Alfred and Guthrum the text of which has been
preserved.

It will be convenient first to consider this compact and then the various
fragments of Northumbrian and Mercian law the production or preservation
of which may be traced to this period.

[Sidenote: English and Danes equally dear.]

The text of the compact is preserved in the tenth-century Manuscript B.
Its first clause defines the boundaries between that part of England
which was to remain English and the Danelaga. With this matter at the
moment we are not specially concerned. Then follows the most material
clause (2):--

    And hi cwædon, gyf mon ofslægen wurðe, eal we letað efen dyrne,
    Engliscne ⁊ Denisce. ꝥ is to .viii. healf-marcum asodenes goldes.
    buton þam ceorle þe on gafol-lande sit ⁊ heora lysingon: þa
    syndon eac efen dyre. ægðer twa hund scyll::

    And they ordained, if a man should be slain we estimate all
    equally dear, English and Danish, _i.e._ at viii half-marks of
    pure gold except the ceorl who sits on gafol land and their
    [the Danish] lysings, they also are equally dear, either at 200
    scillings.

    And gyf man cynges þegen beteo man-slihtas. ⁊ he hine ladian
    durre. do he ꝥ mid xii cynges þegnas ⁊ gyf mon þone man betyhð þe
    bið læssa maga. ladie hine xi his gelicena ⁊ anum cyninges þegene.

    And if a man accuse a king’s thane of manslaying and he dare to
    clear himself, let him do that with 12 king’s thanes, and if any
    one accuse that man who is of less degree let him clear himself
    with 11 of his equals and with one king’s thane.

Now, in the first place, it is evident that this text describes the
wergeld of two classes or ranks of persons.

Dane and Englishman of the first class are to be held equally dear at
eight half-marks of pure gold.

The other class embraces the Saxon ‘ceorl who sits on gafol land’ and the
Danish lysing. These also are equally dear at 200 scillings.

[Sidenote: Englishman put on a level with the Norse hauld, at the normal
wergeld of 200 gold solidi or 1200 scillings.]

Let us look at these two classes separately. The first class of Dane
and English _men_ without other definition are to be paid for by eight
half-marks of gold. The money is Danish. Eight half-marks contained
thirty-two ores. And this, as we have seen, at the Norse ratio of 1:8 was
the same thing as 32 marks of silver. The wergeld of the hauld of the
Gulathing law we found to be most probably 30 marks of silver. The Danish
_man_ of this clause thus seems to be represented in Norse law by the
hauld. In other words, Guthrum from his point of view took the hauld as
the typical freeman, just as we found him so taken in the Gulathing law.

It will be remembered that this wergeld of the hauld was equated with 96
cows and that in its gold value reckoned in wheat-grains it amounted to
200 Merovingian gold solidi.

From the English point of view it was not far otherwise. The
twelve-hyndeman with a wergeld of 1200 scillings was evidently the
typical freeman Alfred had in view. 1200 Mercian scillings of four pence,
_i.e._ 4800 pence, at the Norse ratio of 1:8 equalled 600 gold tremisses
or 200 gold solidi. 1200 Wessex scillings of five pence at a ratio of
1:10 would also equal 200 gold solidi.

The equation was therefore well within the range of reasonable
compromise. And behind both these wergelds--that of the hauld and of the
twelve-hyndeman--there seems to be the curious traditional (conscious or
unconscious) reference so often repeated to the ancient normal wergeld of
200 gold solidi and the heavy gold mina. At this normal wergeld Dane and
Englishman were to be held equally dear.

[Sidenote: English ceorl on gafol land put on a level with the Norse
leysing.]

Turning now to the other class, the wergeld is described in English
scillings and the wergeld is that of the twy-hyndeman--two hundred
scillings--_i.e._ one sixth of the wergeld of the other class. On the
Danish side the equivalent of the twy-hyndeman was the lysing, _i.e._ the
‘leysing’ or newly made freedman of the Gulathing law, who had not yet
made his freedom-ale and whose wergeld was one sixth of that of the hauld
‘according to his rett.’

Here again the correspondence is complete. The English twy-hyndeman is
put by this compact on the same standing as to wergeld as the Norse
leysing or newly made freedman who had not yet made his freedom-ale.

But we gain another point from this remarkable clause. We are warned by
it not to be drawn too easily into a rash generalisation from the use of
the Saxon word _ceorl_.

It is not the ‘ceorl’ _as such_ who is the twy-hyndeman and put upon the
same social level as the Danish lysing. It is clearly only the ‘ceorl
_who sits on gafol land_.’ It is on the last words that the distinctive
emphasis must be put. If we had nothing but this clause to guide us we
might conclude that all above the ‘ceorl who sits on gafol land’ were
twelve-hynde.


II. THE COURSE OF PROCEDURE IN PAYMENT OF WERGELD.

There are two statements of the course of procedure in the payment of
wergelds which may conveniently be mentioned at this point. The first
occurs in the ‘Laws of King Edmund,’ who reigned A.D. 940-946. And the
other is contained in a fragment belonging probably to the time following
soon after the Compact between Alfred and Guthrum.

[Sidenote: King Edmund makes payment of wergeld voluntary.]

King Edmund, in order to abate the ‘manifold fightings’ resulting from
the system of feud and wergeld, made stringent regulations under which
wergelds were to be claimed, making it voluntary on the part of the
kindred to join in payment of the wergeld.

    Gif hwa heonan-forð ænigne man ofslea ꝥ he wege sylf þa fæhðe
    butan he hy mid freonda fylste binnan twelf monðum forgylde be
    fullan were sy swa boren swa he sy. Gif hine þonne seo mægð
    forlæte & him foregyldan nellen þonne wille ic ꝥ eall seo mægð
    sy unfah. butan þam hand-dædan, gif hy him syþþan ne doð mete ne
    munde. Gif þonne syþþan hwilc his maga hine feormige þonne beo he
    scyldig ealles þæs þe he age wið þone cyning ⁊ wege þa fæhðe wið
    þa mægðe forþam hi hine forsocan ær. Gif þonne of þære oðre mægðe
    hwa wrace do on ænigum oðrum men butan on þam riht hand-dædan sy
    he gefah wið þone cyning ⁊ wið ealle his frynd & þolige ealles
    þæs þe he age.

    (Edmund Secular Laws, s. 1.) If any one henceforth slay any man
    that he himself bear the feud unless with the aid of his friends
    and within 12 months he compensate it with the full wer; be he
    born as he may be. But if his mægd forsake him and will not pay
    for him, then I will that all the kindred be _unfah_ [free from
    the feud] except the perpetrator, if afterwards they do not give
    him either food or mund [protection]. But if any one of his
    kindred feed him, then  be he liable in all that he possesses to
    the king and bear the feud with the kindred because they had
    previously forsaken him. But if anyone of the other kindred take
    vengeance upon any other man than the real perpetrator, let him
    be foe to the king and to all his friends and forfeit all that
    he owns.

    Gif hwa cyrican gesece oþþe mine burh ⁊ hine man þær sece oþþe
    yflige þa þe ꝥ deð syn þær ylcan scyldige þe hit her beforan cwæð.

    (2) If any one take refuge in a church or in my burh, and one
    there seek him or do him evil, be those who do that liable in the
    same that is heretofore ordained.

    And ic nelle ꝥ ænig fyhtewite oþþe man-bote forgifen sy.

    (3) And I will not that any _fightwite_ or _manbot_ be forgiven.

This relaxation of the rules as to payment of wergeld seems to leave
matters very much as they were, with the one exception that for the sake
of peace and to lessen the risk of ‘manifold fightings,’ a year was
given to the slayer’s kindred to save his life by helping him to pay the
wergeld if they chose, while if they chose to forsake him and did not
harbour or help him in any way _they_ were free. The kindred of the slain
in the meantime were left to pursue their feud but only upon the slayer.
This of course was another instance of the partial breaking down of the
ancient tribal solidarity of the kindred in favour of the principle, long
before adopted in some of the Continental codes, limiting the punishment
of crime to the criminal himself.

Whether this innovation of King Edmund’s was adhered to the evidence
of the Laws of Henry I. may lead us to doubt, but for our purpose the
law making the innovation is evidence of the ancient solidarity of the
kindred, the attempt to loosen which had become necessary in the tenth
century.

[Sidenote: How wergelds were to be paid.]

A clause which follows shows that it was expected that wergelds would
still be paid:--

    Witan scylon fæhðe settan ærest æfter folc-rihte slaga sceal
    his for-specan on hand syllan ⁊ se for-speca magum ꝥ se slaga
    wille betan wið mægðe. þonne syþþan gebyred ꝥ man sylle þæs
    slagan for-specan on hand ꝥ se slaga mote mid griðe nyr ⁊ sylf
    wæres weddian. Ðonne he þæs beweddod hæbbe þonne finde he þærto
    wær-borh, þonne ꝥ gedon sy þonne rære man cyninges munde of þam
    dæge on xxi niht gylde man heals-fang. þæs on xxi niht manbote.
    þæs on xxi niht þæs weres ꝥ frum-gyld.

    (7) The Witan shall appease feuds. First according to folkright
    the slayer shall give pledge to his _forespeca_ and the forespeca
    to the kindred that the slayer will make bot to the kindred. Then
    after that it is requisite that security be given to the slayer’s
    forespeca that the slayer may in peace come near and himself
    give wed for the wer. When he has given wed for this let him find
    thereto a werborh. When that is done let the King’s mund be levied.
    Within 21 days from that day let the _halsfang_ be paid. 21 days
    from that the manbot. 21 days from that the frumgeld of the wer.

[Sidenote: Earlier statement of how wergelds were to be paid.]

The further course of procedure is best given in the earlier fragment
alluded to.

[Sidenote: The werborh.]

The fragment[235] is headed ‘How a twelve-hyndeman shall be paid for.’
It opens with the statement, ‘A twelve-hyndeman’s wer is twelve hundred
scillings. A twy-hyndeman’s wer is two hundred scillings.’ And then it
proceeds:--

    Gif man ofslægen weorðe gylde hine man swa he geboren sy. And
    riht is ꝥ se slaga siþþan he weres beweddod hæbbe finde þærto
    wær-borh be þam þe þærto gebyrige ꝥ is æt twelf-hyndum were
    gebyriað twelf men to werborge, viii fæderen-mægðe ⁊ iiii
    medren-mægðe.

    If any one be slain let him be paid for according to his birth.
    And it is right that the slayer after he has given wed for the
    wer find in addition a _werborh_ according as shall thereto
    belong, that is to a twelve-hynde’s wer twelve men are necessary
    as _werborh_, viii of the paternal kin and iv of the maternal kin.

This is in accordance with the clause in Alfred and Guthrum’s compact,
which, however, makes the additional provision by way of precaution
that one of the twelve co-swearers must be a king’s-thane. The clause
continues:--

[Sidenote: The king’s mund.]

    Ðonne ꝥ gedon sy þonne rære man cyninges munde, ꝥ is ꝥ hy ealle
    gemænum handum of ægðere mægðe on anum wæpne þam semende syllan ꝥ
    cyninges mund stande.

    When this is done, then let the king’s mund be established, that
    is, that they all of either kindred, with their hands in common
    upon one weapon, engage to the mediator that the king’s mund
    shall stand.

The king’s mund-byrd, as we have seen, was equal to five pounds according
to both English and Kentish custom.

[Sidenote: The heals-fang.]

    Of þam dæge on xxi nihtan gylde man cxx scill. to heals-fange æt
    twelf-hyndum were. Heals-fang gebyreð bearnum broðrum ⁊ fæderan
    ne gebyreð nanum mæge ꝥ [feoh] bute þam þe sy binnan cneowe.

    In xxi days from that day let cxx shillings be paid as heals-fang
    at a twelve-hynde’s wer. Heals-fang belongs to the children,
    brothers and paternal uncles: that money belongs to no kinsman
    except to those that be within the knee.

[Sidenote: The manbot and fightwite and then the wergeld.]

    Of þam dæge þe ꝥ heals-fang agolden sy on xxi nihtan gylde man
    þa man-bote þæs on xxi nihtan ꝥ fyht-wite þæs on xxi nihtan þæs
    weres ꝥ frumgyld ⁊ swa forð ꝥ fulgolden sy on þam fyrste þe witan
    geræden. Siþþan man mot mid lufe ofgan gif man [wille] fulle
    freondrædene habban.

    In xxi days from the day that the heals-fang is paid let the
    manbot be paid. In xxi days from this the fightwite. In xxi
    days from this the ‘frumgyld’ of the wer; and so forth till it
    be fully paid within the time that the witan have appointed.
    After this they may depart with love if they desire to have full
    friendship.

    Eal man sceal æt cyrliscum were be þære mæðe don þe him
    to-gebyreð swa we be twelf-hyndum tealdan.

    All men shall do with regard to the wer of a ceorl that
    which belongs to his condition like as we have said about a
    twelve-hyndeman.

These steps in the procedure are very nearly the same as those quoted in
the so-called ‘Laws of Henry I.’ and these clauses may probably be looked
upon as more or less repeating for the benefit of both peoples what
Anglo-Saxon custom may have been before the Viking invasions of England.
But of this we cannot be certain.


III. FRAGMENTS OF MERCIAN AND THE NORTH PEOPLE’S LAW.

[Sidenote: Fragments preserved of ancient custom.]

We now have to consider a group of fragments of uncertain date which seem
to belong to the period of the Northmen’s settlement in Northumbria and
invasions in Mercia.

The settlement of the Viking invaders made it necessary to fix the
relation of their wergelds to those of the conquered English, and also to
gather up fragments of Mercian custom. As the Dooms of Mercian kings have
not come down to us, these fragments have a special value.

The importance of Mercia in King Offa’s time gives a special interest to
any information on Mercian custom. And in other respects, scanty though
it be, the retrospect of early Anglo-Saxon custom from the invaders’
point of view could ill be spared.

[Sidenote: Under Mercian law the oath of twelve-hyndeman = that of six
ceorls.]

There are two valuable fragments on Mercian law.

The first is as follows:--

    _Be Merciscan Aðe_

    _Of the Mercian Oath_

    Twelf-hyndes mannes að forstent vi ceorla að forþam gif man þone
    twelf-hyndan man wrecan sceolde he bið full-wrecan on syx ceorlan
    ⁊ his wer-gyld bið six ceorla wer-gyld.

    A twelve-hyndeman’s oath stands for six ceorls’ oaths; because if
    a man should avenge a twelve-hyndeman he will be fully avenged on
    six ceorls and his wergild will be six ceorls’ wergilds.

This fragment of Mercian law is preceded in the group of fragments ‘on
oaths’ in Thorpe’s edition of the Laws by the following, which may or
may not be of Mercian origin:--

[Sidenote: Mass-priest’s oath = that of the thane.]

    Mæsse-preostes að ⁊ woruld-þegenes is on Engla-laga geteald
    efen-dyre ⁊ for þam seofon ciric-hadan þe se mæsse-preost þurh
    Godes gif geþeah ꝥ he hæfde he bið þegen-rihtes wyrðe.

    A mass-priest’s oath and a secular thane’s are in English-law
    reckoned of equal value; and by reason of the seven
    church-degrees that the mass-priest through the grace of God has
    acquired he is worthy of thane-right.

The other fragment of Mercian law is as follows:--

[Sidenote: Mercian wergelds.]

    Ceorles wer-gild is on Myrcna lage cc scill. Ðegnes wer-gild is
    syx swa micel ꝥ bið xii hund scill. Ðonne bið cynges anfeald
    wer-gild vi þegna wer be Myrcna lage ꝥ is xxx þusend sceatta ⁊
    ꝥ bið ealles cxx punda. Swa micel is þæs wer-gildes on folces
    folc-rihtes be Myrcna lage. And for þam cyne-dome geborað oðer
    swilc to bote on cyne-gilde. Se wer gebirað magum ⁊ seo cyne-bot
    þam leodum.

    A ceorl’s wergeld is by Mercian law cc scillings. A thane’s
    wergeld is six times as much, _i.e._ xii hundred scillings.
    Then is a king’s simple wergeld vi thanes’ wer by Mercian law,
    _i.e._ xxx thousand sceatts, and that is altogether cxx pounds.
    So much is the wergeld in the people’s folkright by Mercian law.
    And for the ‘Cynedom’ there is due another such sum as _bot_ for
    _cyne-gild_. The wer belongs to the kindred and the cynebot to
    the people.

The Mercian wergeld of both twy-hynde and twelve-hynde men is thus
stated in scillings, as usual, and the king’s wergeld--six times the
thane’s--would equal 7200 scillings. The Mercian scilling was 4_d._,
and thus, as stated in the text, the king’s wergeld would equal exactly
120_l._ or 28,800 pence or sceatts (in round numbers 30,000 sceatts).

This is useful as evidence that the sceatt of this Mercian wergeld was
the silver penny of the Anglo-Saxon currency of 28·8 wheat-grains--_i.e._
of the _Sceatt series_--before Offa and Alfred, following the example of
Charlemagne, superseded the ‘sceatt’ by the ‘penny’ of 32 wheat-grains.

[Sidenote: Fragment of North People’s Law.]

The fragments printed by Thorpe under the heading ‘North People’s Law’
and by Schmid in his ‘Anhang VII.’ seem to belong to Northumbria or
more generally to the Danelaga. Schmid suggests that the ‘North people’
were the North folk of East Anglia. This, however, is perhaps more than
doubtful, especially when it is considered that the Viking ‘armies’ had
established themselves, not only in East Anglia and Mercia, but still
more completely in Northumbria, many years before the struggle with
Wessex had ended in the compact between Alfred and Guthrum.

The fragment of ‘North People’s Law’[236] opens with the statement that
the king’s gild is 30,000 _thrymsas_--15,000 for the wergeld and 15,000
for the people (_leodum_).

In another MS. the wording follows the statement of Mercian law very
closely, and agrees with the above in describing the amount in thrymsas.

[Sidenote: Wergelds paid in thrymsas of threepence.]

    Ðæs cyninges wer-gyld sie mid Engla cynne on folc-riht þryttig
    þusend þrimsa ⁊ þæra xv .M. sien þæs wæres ⁊ oðra xv .M. þæs
    cynedomes. Se wære belympað to þam mægðe þæs cyne-cynnes ⁊ ꝥ
    cynebot to þam land-leod.

    Let the king’s wergeld be with the English race by folkright,
    30,000 thrymsas, and of these let 15,000 be for the wer and the
    other 15,000 for the _cynedom_. The wer belongs to the kindred of
    the king and the cynebot to the people.

Now, in the first place, what was the _thrymsa_, which occurs in these
clauses for the first time?

A statement a little further on in one of the two texts of the same
fragment fixes the value of the thrymsa at three pence.[237]

The statement of ‘North People’s Law’ proceeds as follows:[238]--

    Arces ⁊ æðelinges wer-gyld is xv þusend þrymsa.

    (2) An archbishop’s and an ætheling’s wergeld is xv thousand
    thrymsas.

    Biscopes ⁊ ealdormannes viii þusend þrymsa.

    (3) A bishop’s and an ealdorman’s viii thousand thrymsas.

    Holdes ⁊ cyninges heah-gerefan iiii þusend þrymsa.

    (4) A hold’s and a king’s high-reeve’s iv thousand thrymsas.

    Mæsse-þegnes ⁊ woruld-þegnes ii þusend þrymsa.

    (5) A mass thane’s and a secular thane’s ii thousand thrymsas.

    Ceorles wer-gild is cc. ⁊ lxvi þrim. ꝥ bið ii hund scill be
    Myrcna lage.

    (6) A ceorl’s wergeld is cc and lxvi thrymsas, that is cc
    scillings by Mercian law.

Put into tabular form these wergelds would be as follows in thrymsas and
Wessex and Mercian scillings:--

                                                      Wessex     Mercian
                                         Thrymsas    shillings  shillings
                                                      of 5_d._   of 4_d._
  King’s wergeld 15,000, cynebot 15,000    30000     =  18000      22500
  Archbishop’s and Ætheling’s              15000     =   9000      11250
  Bishop’s and Ealdorman’s                  8000     =   4800       6000
  Holdr’s and King’s high-reeve’s           4000     =   2400       3000
  Mass thane’s and secular thane’s          2000     =   1200       1500
  Ceorl’s                                    266⅔    =    160        200

The ceorl has a twyhynde wergeld in Mercian shillings and the thane a
twelve-hynde wergeld in Wessex shillings. There seems to be so far some
confusion. But on the whole this reckoning seems to justify the opinion
generally held that the Northmen coming as conquerors into Northumbria or
the Danelaga had, at the date of these fragments, doubled the wergeld of
the hold or hauld as compared with that of the English thane.

[Sidenote: Wergeld of hauld double that of the thane, but after Alfred’s
victory both equally dear.]

If, as seems reasonable, these fragments may be referred to the period
following upon the Viking conquest and settlement in Northumbria and the
foundation of Halfdan’s kingdom of York (A.D. 876), then the doubled
wergeld of the hauld may be perhaps the high-water mark as it were of the
invasion--the point of vantage at which it was natural for the conquerors
to treat the conquered as a tributary race. And if it may rightly be so
regarded, then it gives an added interest to the compact between King
Alfred and Guthrum in 886. For then, the tide of battle having turned,
the two kings at length met on equal terms and, undoing the earlier
unequal settlement, now agreed to make Dane and Englishman equally dear.

A still more interesting point than the doubling of the conquering Hold’s
wergeld as compared with the conquered thane’s is found in the subsequent
clauses of this fragment, which seem to refer back to ancient tradition
as regards the position of the non-Saxon subjects of Anglo-Saxon
kings.[239]

[Sidenote: Chance given to the Wiliscman to rise as in the laws of Ine.]

    And gif Wilisc man geþeo ꝥ he hæbbe hiwisc landes ⁊ mæge cyninges
    gafol forð-bringan, þonne bið his wergild cxx scill. And gif he
    ne geþeo buton to healfne hide þonne si his wer lxx scill.

    (7) And if a Wiliscman thrive so that he have _hiwisc landes_ and
    can bring forth the king’s gafol, then his wergeld shall be cxx
    scillings. And if he only comes up to a half hide then shall his
    wer be lxxx scillings.

    And gif he ænig land næbbe ⁊ þeah freoh sy forgilde hine man mid
    lxx scill.

    (8) And if he have not any land and yet be free, let him be paid
    for with lxx scillings.

The other version is practically the same:--

    And Wealisc-monnes weregild gif he beo to tham gewelegod ꝥ he
    hyred ⁊ eht age ⁊ þam cyng gafol gyldan mæg hit bið þon ccxx
    scill. Ac he ne bið butan to healf hyda gerysen þonne sie his
    were lxxx scill.

    (7) And a Wealisc-man’s wergeld if he be so enriched that he has
    family and goods (_hyred and eht_) and can pay the King’s gafol
    shall be ccxx scillings [? cxx]. And if he be risen but to half
    a hide, then shall his own wer be lxxx scillings.

    Gif he land næbbe ac bið freoh gyld mon lxx scill.

    (8) If he have no land but is free let him be paid for with lxx
    scillings.

Now ‘hiwisc’ and ‘hyred’ both seem to mean _family_. In a roundabout
indirect way ‘familia’ and _hide_ meant apparently very much the same
thing, but as the word _hide_ is used in the same clause the more direct
meaning may surely in this case be the important one.

It is probable that these clauses are variations or fuller expressions
of the tradition described in c. 32 of King Ine’s Laws, which is as
follows:--

    Gif Wylisc mon hæbbe hide londes his wer bið c. xx scill., gif he
    þonne hæbbe healfe lxxx scill., gif he nænig hæbbe lx scillinga.

    If a Wylisc man have a hide of land his ‘wer’ shall be cxx _s._,
    but if he have half a hide lxxx _s._, if he have none lx _s._

And the additional information amounts practically to this--that the
possession of a hide seems to have been held generally equivalent to the
possession of a family homestead--family and goods--enabling a man to pay
the king’s gafol.

It is when we pass on from these clauses to the next that fresh and
welcome light seems to be gained upon the connection of the growth of a
family and kindred with rise in status and social rank from a ceorlisc or
twy-hynde position to that of the Gesithcund or twelve-hynde position.
We are now no longer dealing with the Wylisc man but with the ordinary
twy-hynde ceorl. And the mention of the payments in thrymsas reminds us
that we are still looking at things from the North people’s point of view.

The clauses in the two versions are as follows:--

[Sidenote: How under early custom a ceorl could rise into the
twelve-hynde class.]

    ix. And gif ceorlisc man geþeo ꝥ he hæbbe v hida landes to cynges
    ut-ware ⁊ hine man ofslea forgilde man hine mid twam þusend
    þrimsa.

    ix. Gif ceorl sie gewelegod to þam þ [he] age v hyda landes ⁊ mon
    hine ofslea gyld hine mon mid ii .M. þrimsa.

    x. And þeah he geþeo ꝥ he hæbbe helm ⁊ byrnan ⁊ golde fæted
    sweord, gif he ꝥ land nafað he bið ceorl swa þeah.

    x. And gif he begytað ꝥ he hæbbe byrne ⁊ helm ⁊ ofergyldenene
    sweord, þeah þe he land næbbe he bið siðcund.

    xi. And gif his sunu ⁊ his sunu-sunu ꝥ geþeoð ꝥ hi swa micel
    landes habban siþþan bið se ofsprinc gesiðcundes cynnes be twam
    þusendum.

    xi. And gif his sunu ⁊ þæs sun-sunu ꝥ begyten ꝥ he swa micel
    landes habbað sien hiora after-gengas þæs siðcunda[n] cynnes ⁊
    gyld þam mon mid ii .M. þrimsa.

    xii. And gif hi ꝥ nabbað ne to þam geþeon ne magan gilde man
    cirlisce.

And they may be translated thus:--

    9. And if a ceorlish man thrive so that he have v hides of land
    to the king’s _utware_ and any one slay him, let him be paid for
    with 2000 thrymsas.[240]

    9. If a ceorl be enriched to that degree that he have 5 hides of
    land to the king’s utware and any one slay him, let him be paid
    for with 2000 thrymsas.

    10. And though he thrive so that he have a helm and coat of mail,
    and a sword ornamented with gold, if he have not that land he is
    nevertheless a ceorl.

    10. And if he acquire so that he have a coat of mail and a helmet
    and an overgilded sword, if he have not that land he is [? not]
    sithcund.

    11. And if his son and his son’s son so thrive that they have so
    much land, afterwards the offspring shall be of gesithcund race
    at 2000 (thrymsas).

    11. And if his son and the son’s son acquire that they have so
    much land, let their successors be of the sithcund kin and let
    them be paid for with 2000 thrymsas.

    12. And if they have not that nor to that can thrive, let them be
    paid for as ceorlish.

These passages are very important, as the most direct evidence we possess
of the way in which under early Anglo-Saxon custom families became
_gesithcund_ by the gradual growth of a kindred whose kinsmen, like the
odal-men of the Norse laws, could reckon four generations in succession
of sufficient landholding.

The evidence is all the more interesting because it seems to come
from the point of view of the Norse or Danish invaders making inquiry
respecting English tradition and recording what had once been the custom
of the conquered districts.

[Sidenote: Another precious fragment, with further information.]

The same remark applies equally to another of these valuable
fragments--‘Of people’s ranks and law.’ It, too, seems to look back and
to record what once had been the custom of the conquered people.

    Hit wæs hwilum on Engla lagum ꝥ leod ⁊ lagu for be geþincðum ⁊
    þa wæron [þeod-] witan weorðscipes wyrðe ælc be his mæðe, eorl ⁊
    ceorl, þegen ⁊ þeoden.

    1. It was whilom, in the laws of the English, that people and law
    went by ranks, and then were the Witan of worship worthy each
    according to his condition, eorl and ceorl, thegen and theoden.

These are the phrases of a writer looking back with regret upon ancient
custom which to him is past or passing away.

After this follow clauses in one of which the word _hyrede_ and the
phrase ‘having so many hides to the king’s _utware_’ again occur, words
that seem to suggest that this fragment, while describing ancient English
custom, hails from a somewhat similar source as the ‘North People’s Law.’

    And gif ceorl geþeah ꝥ he hæfde fullice fif hida agenes landes,
    cirican ⁊ kycenan, bell-hus ⁊ burh-geat, setl ⁊ sunder-note, on
    cynges healle þonne wæs he þonon-forð, þegen-rihtes weorðe.

    2. And if a ceorl thrived so that he had fully five hides of his
    own land, church and kitchen, bell-house and burh-geat, seat
    and special duty in the King’s hall, then was he thenceforth of
    thane-right worthy.

This seems to be practically identical with clause 9 of the previous
fragment. Then follows:--

    And gif þegen geþeah ꝥ he þenode cynge ⁊ his rad-stefne rad on
    his hirede, gif he þonne hæfde þegen þe him filigde þe to cinges
    ut-ware fif hida hæfde ⁊ on cynges sele his hlaforde þenode &
    þriwa mid his ærende gefore to cinge se moste syþþan mid his
    foraðe his hlaford aspelian æt mistlican neodan ⁊ his onspæce
    geræcan mid rihte swa hwær swa he sceolde.

    And if a thane thrived so that he served the King and on his
    summons (_rád-stefne_) rode with his household (_hirede_), if he
    then had a thane who him followed, who to the King’s _utware_
    five hides had, and in the King’s hall served his lord [the
    thane] and thrice with his errand went to the King, he might
    thenceforth with his foreoath his lord represent at various needs
    and his plaint lawfully conduct wherever he ought.

    And seþe swa geþogenne forwyrht an næfde swore for sylfne æfter
    his rihte oþþe his þolode.

    4. And he who so prosperous a vicegerent had not, swore for
    himself according to his right, or it forfeited.

    And gif þegen geþeah ꝥ he wearð to eorle þonne wæs he syþþan
    eorl-rihtes weorðe.

    5. And if a thane thrived, so that he became an eorl, then was he
    thenceforth of eorl-right worthy.

These passages we shall have to consider further when we sum up the
evidence upon the Anglo-Saxon division of classes.

[Sidenote: The ceorl must rise into direct service to the king and to
having a kindred around him.]

But there are two peculiarities which may be marked here as pointing
to the archaic character of these precious fragments. First, the
alliteration and rhythmical character of some of them, which points to
an early and traditional origin, and, secondly, the direct relations of
the classes mentioned to the king. The Wilisc man has to bring forth the
king’s gafol. The ceorl who has five hides has them to the king’s utware
and he becomes gesithcund and thane-right worthy with special duty in the
king’s hall, while the thane is all the greater when he has a thane under
him who has himself five hides to the king’s utware and goes with his
errands to the king.

These are marks of direct relationship and service of the gesithcund
classes to the king, to which we shall have to recur. They seem to point
to the gesithcund class with its completeness of kindred as a privileged
class in a semi-official position and from which the king’s officials
were chosen. It is not until this relationship by service to the king has
become established that a ceorl finds an entrance into the gesithcund
class, and he does not become eligible for such service till he is
surrounded by an adequate kindred.

In the meantime we may be thankful to the exigences of the Viking
invasions for the preservation of these valuable fragments of ancient
custom which might otherwise have been lost.




[Illustration]




CHAPTER XIII.

_EARLY ANGLO-SAXON CUSTOM._


I. KING ALFRED’S DOOMS.

[Sidenote: Alfred’s laws not earlier than the Compact with Guthrum.]

In order that the examination of early Anglo-Saxon custom may be free
from the intrusion of elements introduced by the Northmen, it is
necessary to go back to evidence of earlier date than the laws of King
Alfred. Though collected mainly from earlier sources, these laws took
their present form probably after the Compact with Guthrum had been made.

They do not profess to be a full statement of early West-Saxon law. King
Alfred himself declares that he dared not add much of his own, ‘But those
things which I met with either of the days of Ine my kinsman, or of Offa,
King of the Mercians, or of Ethelbert--those which seemed to me the
rightest I have here gathered together and rejected the others.’

Under these circumstances it will be more convenient to refer back to
King Alfred’s laws when needful in connection with the earlier evidence
than to consider them as a separate whole.

There is, however, one subject upon which the evidence of King Alfred’s
laws may properly be considered before passing on to the earlier laws.

[Sidenote: Were the terms ceorl and gafol-gelda equivalent?]

We have seen that in the Compact with Guthrum the Anglo-Saxon ‘ceorl who
sits on gafol-land’ and who was made ‘equally dear’ at 200 scillings
with the Danish lysing was, if the words may be taken strictly, not
necessarily a typical or representative member of the ceorlisc class as
a whole. Only some of the ceorlisc class may have been gafol-geldas on
other people’s land. It is important, therefore, to examine whether King
Alfred’s laws afford contemporary evidence that the ceorlisc and the
twy-hynde classes were practically the same, and whether they were, as
a rule, gafol-geldas. We have seen, from the precious fragments before
quoted, that under ancient ‘English’ law a ceorl could rise out of the
twy-hynde class and become entitled to a twelve-hynde wergeld of 2000
thrymsas.

If such a statement had been found in West-Saxon law, the inference might
at first sight be that the ceorlisc class could hardly have been mainly
a class of gafol-geldas. The laws of Alfred surely ought to throw some
light upon this important matter.

In section 39 is the following:--

[Sidenote: The ceorl below the six-hyndeman.]

    Gif hwa on ciorlisces monnes flette gefeohte mid syx scill.
    gebete þam ceorl. Gif he wæpne gebrede ⁊ no feohte sie bi healfum
    þam. Gif syx-hyndum þissa hwæðer gelimpe þriefealdlice [arise
    be þære ciorliscan bote. xii-hyndum men twyfealdlice] be þæs
    syx-hyndan bote.

    If any one fight in a ceorlisc man’s flet with six scillings
    let him make bot to the ceorl. If he draw his weapon and fight
    not let it be half of that. If, however, either of these happen
    to a six-hynde man let it increase threefoldly according to the
    ceorlisc bot; to a twelve-hyndeman twofoldly according to the
    six-hynde’s bot.

The ceorlisc man in this section takes the place of the twyhynde man in
contrast with the six-hynde and twelve-hynde classes. The payments are
the bots payable to the owners for fighting within their sacred precinct
or inclosure, and the amounts following the proportions of the wergelds
of the three classes are:--

  Ceorlisc man’s    6 scillings
  Six-hyndeman     18     ”
  Twelve-hyndeman  36     ”

In this section the ceorlisc class seems clearly to take the place of the
twy-hynde class. They seem to be identical.

Section 40 gives similar evidence, in connection with the _burg_ -or
_burh_-bryce or breach of the fence of the sacred precinct.

    Cyninges burg-bryce bið cxx scill. Ærcebiscopes hund nigontig
    scill. Oðres biscepes & ealdormonnes lx scill. Twelf-hyndes
    monnes xxx scill. Syx-hyndes monnes xv scill. Ceorles edorbryce v
    scill.…

    The King’s burh-bryce shall be cxx scillings. An archbishop’s
    ninety scillings. Any other bishop’s and an earldorman’s lx
    scillings. A twelve-hyndeman’s xxx scillings. A six-hyndeman’s xv
    scillings. A ceorl’s edorbreach v scillings.…

[Sidenote: The ceorl twy-hynde.]

Here again the ceorl takes the place of the twy-hyndeman, and the
burh-bryce is graduated accordingly, the twelve-hyndeman’s being six
times the ceorl’s.

  King’s                     120 scillings
  Archbishop’s                90     ”
  Ealdorman’s or bishop’s     60     ”
  Twelve-hynde’s              30     ”
  Six-hynde’s                 15     ”
  Ceorl’s edorbreach           5     ”

There may well be some delicate significance in the word _burh_-bryce
being applied only to the twelve-hynde or six-hynde men, and not to the
ceorl, as though the word _burh_ could not be applied to the ceorl’s
homestead. His ‘flet,’ surrounded by its _edor_ or hedge, was perhaps too
humble to be classed with the moated or walled enclosure of the _burh_
of the higher landed classes without a change of epithet. But there is
nothing to show that the ceorl of this clause is not identical with the
ordinary twy-hyndeman.

Lastly, in sections 10 and 18 the three classes are again described as
twelve-hynde, six-hynde, and ceorlisc; while in sections 29, 30, and 31
they are described as twelve-hynde, six-hynde, and twy-hynde.

All this seems to show that for general purposes ‘twy-hynde’ and
‘ceorlisc’ were convertible terms.

[Sidenote: Ceorls must be mostly gafol-geldas.]

It can hardly be said that there is anything in King Alfred’s laws making
a distinction between the twy-hynde class and the ceorlisc class. There
seems to be nothing to suggest that the twy-hynde wergeld was confined
to any particular section of the ceorlisc class. And therefore, so far
as the laws of Alfred are concerned, the description of the twy-hynde
class in the Compact with Guthrum as gafol-geldas equally dear with the
Danish lysing would seem to apply generally to the ceorlisc class as a
whole. And this being so, it would seem probable that, speaking broadly,
by King Alfred’s time the chief practical division of classes had already
resolved itself into that between the landed classes on the one hand and
their gafol-paying tenants on the other.

It is quite true that under King Alfred’s laws there is the six-hynde
class between the twelve-hynde and the twy-hynde or ceorlisc class; but
his laws tell us nothing about this six-hynde class except what may be
inferred from the fact that its members certainly were not included in
the ceorlisc class. It can hardly be likely that King Alfred could, in
his compact with Guthrum, have confined the twy-hynde class to the ‘ceorl
who sits on gafol-land,’ leaving out the six-hynde class altogether, if,
in his laws, he meant by the six-hynde class the ceorls who did not sit
on gafol-land. It might have been possible to suppose that he used the
word ‘ceorl’ in his laws in a wider sense, as including both twelve-hynde
and twy-hynde, had he not introduced the six-hynde class between them and
restricted the meaning of the word ‘ceorlisc’ to the twy-hynde class. He
used it apparently to distinguish the twy-hynde from the other classes
which by inference were not ceorlisc.

What the six-hynde class was and what the ceorlisc class was under
West-Saxon law two centuries earlier than King Alfred’s day must be left
to be discovered from the evidence of the Dooms of Ine.

       *       *       *       *       *

[Sidenote: The mund-byrd or borh-bryce of various classes.]

In the meantime, the consideration of the position of the ceorlisc class
having brought before us the penalties for breach of the precinct and for
fighting within the precinct of the various classes, it may be well to
consider also the evidence of King Alfred’s laws upon the mund-byrd or
borh-bryce of what we may regard perhaps as the official classes, and in
which apparently, at this date, even the twelve-hynde man had no part.

The mund-byrd or borh-bryce seems to be confined to those in official or
judicial position.

Already in King Alfred’s laws we have lost the word ‘grith’ as we had
already in Cnut’s laws lost the later phrase ‘sac and soc,’ but the
tribal principle underlying the meaning of the words remains the same and
becomes all the clearer as we go back in the evidence.

In s. 3, the borh-bryce and mund-byrd of the king are stated to be _five
pounds of_ ‘mærra pæninga,’[241] an archbishop’s three pounds, and those
of the ealdorman and lesser bishops two pounds, exactly as they were
reported to have been in Cnut’s time in the ‘grith-law’ of the South
Angles.[242]

[Sidenote: Its tribal origin.]

The almost indiscriminate use of the two terms in this clause suggests
again the very slight distinction between them. The man who by giving
his pledge placed himself artificially, so to speak, under the mund or
protection of a person in a judicial position or authority and broke
his pledge became guilty of borh-bryce or mund-byrd, it hardly mattered
which. The penalty apparently included both crimes in one. If we might
use the Brehon phrase it was the _eneclann_, or honour price of the
person whose dignity was injured, which had to be paid.

But, as we have seen, these penalties were not only personal but also
connected with the sanctity of what under Brehon law was called the
‘maigin’ or precinct. The Brehon tract which declares the extent of the
‘inviolable precinct’ of the ‘boaire-chief’ to reach as far as he can
throw a spear or hammer from the door of his house, also states that
those of higher chieftains extended by multiples of this according to
their honour-price, so that the inviolable precinct of the _ri-tuath_
extended to sixty-four spear-casts from his door.[243] We have already
quoted a fragment fixing the extent of the king’s ‘grith’ at ‘three
miles and three furlongs and three acre breadths and nine feet and nine
hand-breadths and nine barleycorns from the burhgeat where the king
is.’[244]

[Sidenote: The ceorl or gafol-gelda had a flet the peace of which could
be broken.]

Under King Alfred’s laws, as we have seen, the penalties for breaking
into this precinct and committing crimes in it were payable to the person
whose ‘peace’ was thus broken, and were not confined to the official
classes as the mund-byrd and borh-bryce were. They went back to the
tribal root-idea of the sanctity of the hearth and homestead of every
tribesman. They extended from the king to the ceorl through all grades.
The penalties for fighting within the precinct were practically the same
in amount as those for the breaking into it. The penalty for fighting in
the ceorlisc-man’s ‘flet’ was practically the same as that for breaking
through his ‘edor’ into it.

When all these penalties are put side by side in the form of a table two
points become evident.

First, how far removed the social position of the twelve-hyndeman was
from that of the ealdorman. The penalty for fighting within his precinct
is not much more than a third of that of the bishop and ealdorman, the
inference being that his official position was much lower than the
ealdorman’s.

Secondly, when we compare the figures in the three columns, while the
burh-bryce and fightwite of the twelve-hynde, six-hynde, and twy-hynde
classes are both graduated in proportion to their wergelds and very
closely resemble one another, it is curious to notice that the fightwite
is based upon a duodecimal and the burh-bryce on a decimal system of
reckoning, as if they had been derived from different original sources.
If King Alfred had originated them he would probably have made them alike.

In the following statement, collected from the several sections of King
Alfred’s Laws for purposes of comparison and future reference, the
amounts are stated in Wessex scillings of five pence.

  +----------------------+-----------------+------------+-----------------+
  |                      | Borh-bryce and  |            |                 |
  |                      |   mund-byrd     | Burh-bryce |    Fightwite    |
  +----------------------+-----------------+------------+-----------------+
  |                      |     (s. 3)      |  (s. 40)   |                 |
  |                      |                 |            |                 |
  |Of the king           |(5 lbs) 240 _s._ |  120 _s._  |(s. 7) (in the   |
  |                      |                 |            |king’s doom)     |
  |                      |                 |            |                 |
  |Of the archbishop     |(3 lbs) 144 _s._ |   90 _s._  |(s. 15) 150 _s._ |
  |                      |                 |            |                 |
  |Of other bishops and  |                 |            |                 |
  |  ealdorman           |(2 lbs)  96 _s._ |   60 _s._  |(s. 15) 100 _s._ |
  |                      |                 |            |                 |
  |Of do. in his ‘gemot’ |                 |            |(s. 38) 120 _s._ |
  |                      |                 |            |                 |
  |Of the twelve-hyndeman|                 |   30 _s._  |(s. 39)  36 _s._ |
  |                      |                 |            |                 |
  |Of the six-hyndeman   |                 |   15 _s._  |(s. 39)  18 _s._ |
  |                      |                 |            |                 |
  |Of the ceorlisc man or|                 |            |                 |
  |  twy-hyndeman        |                 |    5 _s._  |(s. 39)   6 _s._ |
  +----------------------+-----------------+------------+-----------------+


II. THE DIALOGUE OF EGBERT, ARCHBISHOP OF YORK A.D. 732-766.
ECCLESIASTICAL OATHS AND WERGELDS.

There is a gulf of nearly two centuries in the West-Saxon evidence
between the laws of Alfred and the ‘Dooms’ of Ine.[245]

We are taken at a leap, not only beyond all thought of the Northmen’s
invasions, but also half a century behind another great epoch of European
importance.

The Empire of Charlemagne formed a kind of watershed in Anglo-Saxon as in
European history, and was marked, as we have seen, by a permanent change
in the currency of the Western world.

[Sidenote: Position of Northumbria before the time of Charlemagne.]

The Courts of Offa and Egbert were intimately connected with the Imperial
Court of Charlemagne, and the transition from the early Anglo-Saxon
currency of sceatts to that of the heavier pence was a typical result of
the influence of the Empire. It may be that the supremacy of Wessex under
Egbert was indirectly another result of it.

The kingdom of Egbert did not extend over Northumbria, and Northumbria
had its own independent connection with the Court of Charlemagne. It
had its own mode of monetary reckoning in ‘thrymsas,’ and from the
Northumbrian fragments already examined we have gained some glimpses into
its ancient customs.

The document next to be examined refers to Northumbria, and, as it dates
from the period immediately preceding the time of Charlemagne, it helps
to bridge over the gulf between the Laws of Alfred and Ine.

[Sidenote: Egbert, Archbishop of York, A.D. 750.]

It is in the form of a Dialogue or set of questions put to Egbert,
Archbishop of York, by his priests, with his answers thereto, and its
date may be about A.D. 750.

Egbert, Archbishop of York, was an important figure in Anglo-Saxon
history. The brother of Eadbert, the Northumbrian king, the recipient on
his accession to his episcopal dignity of the remarkable letter of Bede
describing the religious anarchy of his diocese, the founder of the great
school at York, in which his pupil Alcuin was educated and from which
he migrated to the Court of Charles the Great, Egbert was an important
personage, and the centre of beneficent influence in the Northumbrian
church and kingdom.

[Sidenote: His Roman and clerical point of view.]

Moreover, this document, so far as it goes and as regards the matters
mentioned in it, deals with the questions raised by it avowedly from an
ecclesiastical point of view. The great ecclesiastic comes down upon his
diocese from a wider world. He had been educated and ordained deacon at
Rome. And just as in the monastic rules of St. Benedict Roman weights
and measures were adhered to, so when this archbishop has to speak of
money matters, ignoring all local currencies, he still thinks and speaks
and calculates in the terms of the Roman Imperial currency, and not in
Anglo-Saxon sceatts and scillings, or in the thrymsas of Northumbrian
usage.

The Dialogue contains several interesting clauses.

[Sidenote: What to be the value of the oaths of clerics.]

The first to be noticed is in answer to the question as to the value to
be attached to the oaths of the bishop, priest, deacon, and monk. The
reply is:--

    Ordines supradicti, secundum gradus promotionis, habeant
    potestatem protestandi: presbiter secundum numerum cxx
    tributariorum; diaconus vero juxta numerum lx manentium; monachus
    vero secundum numerum xxx tributariorum, sed hoc in criminali
    causa. Cæterum si de terminis agrorum oritur altercatio,
    presbitero liceat juramenti sui adtestatione terram videlicet
    unius tributarii in jus transferre æcclesiæ. Duobus quoque
    diaconis id ipsum conceditur. Testificatio vero trium monachorum
    in id ipsum sufficiat.

    The said orders according to their grade of promotion shall
    have power of protestation. The priest to the number of cxx
    tributarii; the deacon up to the number of lx ‘_manentes_;’
    the monk to the number ‘xxx tributarii,’ _i.e._ in a criminal
    cause. But if the dispute has arisen about the boundaries of
    lands it shall be lawful to the priest on attestation of his
    oath to transfer, into the right of the church, land, _i.e._ of
    one _tributarius_. To two deacons also the same is conceded. Let
    attestation of three monks suffice for the same.

Now, it seems very unlikely that such a question as this about the value
of oaths should be asked of the Archbishop if it had already been settled
by law in Northumbria. And so we seem to see him here making a claim and
laying down a principle for the first time in Northumbria the following
of which resulted in his priests being put upon a par with the secular
thane as regards the value of their oaths.

[Sidenote: In Mercia priest’s oath of same value as that of the thane.]

The principle that one man’s oath was worth more than another’s we have
seen already stated in the undated fragment on ‘Mercian oaths,’ which
very possibly represented ancient tradition.

    A twelve-hynde oath stands for six ceorls’ oaths, because if a
    man should avenge a twelve-hyndeman he will be fully avenged on
    six ceorls and his wergeld will be six ceorls’ wergelds (p. 360).

And, further, the right of the priest to be put on equal footing with the
thane we have seen recognised in another fragment.

    A mass priest’s oath and a secular thane’s are in English law
    reckoned of equal value, and by reason of the seven church
    degrees that the mass priest through grace of God has acquired,
    he is worthy of thane-right (p. 361).

The same principle was recognised in the further fragment on the North
People’s wergelds.

The usual statement in Continental and Anglo-Saxon laws as regards
compurgation is that a man must clear himself by his oath and the
oaths of so many oath-helpers. But in the Laws of Ine, with which the
Archbishop was doubtless conversant, another method was followed in
some cases. A man must clear himself, not with the oaths of so many
oath-helpers, but with an oath of so many _hides_. The claim of the
Archbishop seems to favour the view, suggested but hardly established by
various passages in the Laws of Ine, that the twelve-hyndeman’s oath was
reckoned at 120 hides.[246]

[Sidenote: Oaths of so many hides.]

All that one can say is that the Archbishop in claiming that the
Northumbrian priest’s oath should be regarded as one of ‘120 tributarii’
seems to have had in his mind what was afterwards generally conceded,
_i.e._ that the priest should be put, in social position, on a par with
the thane or twelve-hynde man. Moreover, the Archbishop’s use in this
connection of the phrase ‘so many _tributarii_’ or ‘_manentes_,’ instead
of so many ‘hides,’ is interesting. It helps us to understand that the
hide as used in the Laws of Ine was probably the same fiscal or gafol
paying unit as the _familia_ of Bede.

Another clause in this interesting document bears more directly upon the
question of homicide, and it is valuable as giving information quite
independent of the Laws.

It is the answer of the Archbishop to the question, ‘What if a layman
shall kill a cleric or a monk, whether the _precium sanguinis_ according
to the law _natalium parentum_ shall be paid to his near relations or
whether his _seniores_ are to be satisfied by a larger amount--which does
your Unanimity sanction?’

The reply is as follows:--

[Sidenote: The wergelds of the clergy to be paid to the church.]

    Quicunque vero ex laicis occiderit episcopum, presbiterum,
    vel diaconum, aut monachum, agat pœnitentiam secundum gradus
    pœnitentiæ constitutos, et reddat precium æcclesiæ suæ; pro
    episcopo secundum [placitum] universalis consilii, pro presbitero
    octingentos siclos, pro diacono sexingentos, pro monacho vero
    quadringentos argenteos; nisi aut dignitas natalium vel nobilitas
    generis majus reposcat precium. Non enim justum est, ut servitium
    sanctæ professionis in meliori gradu perdat quod exterior vita
    sub laico habitu habuisse jure parentum dinoscitur.

    Whoever indeed of laymen shall have killed a bishop, priest, or
    deacon or monk shall do penance according to the constituted
    scale of penitentials, and let him pay the price to his
    church--for a bishop according to [the decision] of a general
    Council:

      For a priest     800 sicli
      For a deacon     600 sicli
      But for a monk   400 argentei[247]

    unless dignity of birth or nobility of kindred demand a greater
    _precium_.  For it is not just that service in a holy profession
    in a higher grade should lose what secular life in lay dress may
    be recognised to have by right of parentage.

The wergelds here stated for the clergy are stated in _sicli_ and
_argentei_. The Roman argenteus, as we have seen (after Nero’s time), was
the drachma of silver, and the siclus was a didrachma or quarter of an
ounce. The Archbishop, therefore, was claiming 200 ounces of silver as
the wergeld of his Northumbrian priest.

[Sidenote: Stated in Roman silver currency.]

Whether he knew it or not, this amounted in value to 4000 sceatts (of
20 to the ounce), _i.e._ 800 Wessex and 1000 Mercian scillings. So
that in claiming for his priest a wergeld of 200 ounces of silver he
does not seem to have had in his mind either the Mercian or the Wessex
twelve-hyndeman’s wergeld, of 1200 scillings, of 5 or 4 sceatts, but,
possibly, as we shall see, a Kentish wergeld of 200 Kentish scillings of
20 sceatts.

[Sidenote: Priest’s wergeld to be 200 Roman ounces of silver.]

The Archbishop’s claim falling short of what was ultimately granted in
Northumbria is curious as showing that Northumbrian law, at this time,
before the inroads of the Norse invaders, was still unsettled, and
that the Archbishop may have been influenced by Kentish rather than by
West-Saxon or Mercian precedents. It was after another century, and after
the Norse invasion and conquest, that the wergelds of the mass-thane and
secular-thane in the ‘North People’s Law’ were stated to be alike at 2000
thrymsas, or 1200 Wessex shillings. How much earlier the equation was
made in Northumbria we know not.

The next clause to be noticed is that in reply to question viii., viz.
‘If any monks shall mix themselves up with sacrilege, should _you_ now
prosecute, if the avengement of the crime pertains to laymen who are
their relations?’

The reply is as follows:--

    [Apostolus dicit,] omnes causas æcclesiæ debere apud sacerdotes
    dijudicari. Si qui vero æcclesiastici crimen aliquod inter
    laicos perpetraverint, homicidium, vel fornicationem, vel furtum
    agentes, hos placuit a secularibus in quos peccaverunt omnimodo
    occupari; nisi animo fuerit æcclesiæ pro talibus satisfacere.
    Laici vero qui sacrilega se contagione miscuerint velatis, non
    eodem modo quo lex publica fornicarios puniri percensuit, set
    duplicato xxx siclorum pecunia, hoc est lx argenteos volumus dare
    ecclesiæ adulterantes, quia graves causæ graviores et acriores
    querunt curas.

    The Apostle declares that all ecclesiastical causes should be
    settled by priests. But if any ecclesiastics have perpetrated any
    crime among laymen, homicide or fornication or theft, it has been
    decreed that they be followed up in every case by laymen against
    whom they have sinned, unless it be the intention of the Church
    to make satisfaction for them. But laymen who shall have joined
    in sacrilegious intercourse with nuns [shall be dealt with] not
    in the same manner as the public law decrees fornicators to be
    punished, but _double_--by the sum of xxx _sicli_--_i.e._ we wish
    adulterers to give to the Church lx _argentei_, because severe
    cases require severer and sharper cures.

This passage once again makes it clear that in this ecclesiastical
document of the Archbishop of York 30 sicli = 60 argentei or Roman
drachmæ.

[Sidenote: Ecclesiastical causes to be settled by priests.]

And, apart from this monetary question, the clause is interesting as
marking the claim that all ecclesiastical causes should be settled by the
clergy themselves.

In case of crime by an ecclesiastic against a layman the Church reserved
the right to stop the layman’s prosecution by payment of the wergeld
or other satisfaction. At the same time the Church was to claim double
compensation from laymen committing crime against nuns. It is impossible
to disassociate this document from the letter of Bede describing the
religious anarchy of the diocese caused by the abuses of the loose
monastic system in vogue, and urging the newly appointed prelate, who was
not yet Archbishop, to undertake their energetic reformation.

[Sidenote: The Church succumbed to the wergeld system.]

But for the present purpose the real worth of these statements is the
independent evidence they give of the continued strength of the wergeld
system and the force of tribal custom in the Northumbrian kingdom before
the Norse invasions. The sense of individualism in Christianity was
opposed to the solidarity and joint responsibility of the kindred. But
instead of fighting against the wergeld system the Church had actually
succumbed to it, and adopted it for its own advantage, placing a money
price upon the blood of its several ecclesiastical ranks, making the
value of the priest four times that of the monk.

The system of compurgation, again, was a part of tribal usage. The Church
adopted it and graduated the worth of the oaths of its various grades
according to secular usage, making the oath of the priest in evidence
four times the value of that of the monk.

In other words, in England, as on the Continent, the clergy, instead of
combating tribal custom in these matters, took their place in the order
of secular rank according to their several grades, bishops claiming
the wergeld of princes, and priests that of thanes, with, however, the
obviously useful reservation that if their secular rank by parentage
and birth should be higher than their ecclesiastical grade, the higher
wergeld should be theirs.

All this we see in the course of being introduced into Northumbrian usage
in answer to local inquiry and local needs, upon the authority of perhaps
the very wisest of Saxon prelates.

The wisdom of such accommodation as this on the part of the Church to
pagan tribal usage is not the matter in question. The point of the
evidence is the proof it gives of the continued strength of tribal usage
in England after many generations of occupation and settlement.


III. THE DOOMS OF INE, A.D. 688-725.

The Dooms of King Ine occupy so important a position as the earliest
direct information upon Anglo-Saxon custom apart from Kent that they
demand careful separate study.

We ought to be able to learn something from them of the aim and spirit of
legislation in Wessex two centuries before King Alfred added them to his
laws.

       *       *       *       *       *

[Sidenote: Ine’s Dooms apart from Alfred’s.]

There is no reason, I think, to suspect that the text of the Dooms of
Ine was altered by Alfred. The words already quoted in which he says
that in his Dooms he collected together what he thought ‘rightest’ of
those things which he met with of the days of Ine and Offa and Ethelbert
without adding much of his own are quite consistent with his preservation
of King Ine’s laws as a whole, though in some points differing from his
own.[248]

King Ine came to the throne in A.D. 688, and he states in his preamble
that he issued his ‘Dooms’ with the counsel of Cenred his father and
of the Bishops of Winchester and London (who had already had twelve or
thirteen years’ experience in their sees) and also with the counsel of
all his _ealdormen_ and his Witan:--

    ꝥ te ryht æw ⁊ ryhte cyne-domas þurh ure folc gefæstnode ⁊
    getrymede wæron, ꝥ te nænig ealdormonna ne us under-geþeodedra
    æfter þam wære awendende þas ure domas.

    So that just law and just kingly dooms might be settled and
    established throughout our folk; so that none of the _ealdormen_
    nor of our subjects should hereafter pervert these our dooms.

[Sidenote: The ealdorman a shire-man in judicial position.]

We mark, then, at once that at this period the most prominent public
official was the _ealdorman_. From clause 8 and clause 9 we learn that
private revenge for a wrong was forbidden before justice had been
demanded from a ‘“scir-man” or other judge.’ And that the ealdorman was a
shire-man we learn from another clause (clause 36).

    Seþe þeof gefehð oþþe him mon gefongenne agifð ⁊ he hine þonne
    alæte oþþe þa þiefðe gedierne forgielde þone þeof [be] his were.

    (36) Let him who takes a thief or to whom one taken is given,
    and then lets him go, or conceals the theft, pay for the thief
    according to his wer.

    Gif he ealdormon sie þolie his scire buton him kyning arian wille.

    If he be an _ealdorman_ let him forfeit his ‘shire’ unless the
    King be merciful to him.

Here, as in Alfred’s Laws, the ealdorman is an official with judicial
jurisdiction. And we learn more about his social status as compared with
that of other classes from s. 45.

[Sidenote: Burg-bryce of various classes.]

    Burg-bryce mon sceal betan c. xx scill. kyniges ⁊ biscepes þær
    his rice bið. Ealdormonnes lxxx scill. Kyniges þegnes lx scill.
    Gesiðcundes monnes land-hæbbendes xxxv scill. ⁊ be þon ansacan.

    (45) Bot shall be made for the _King’s_ burg-bryce, and a
    bishop’s where his jurisdiction is, with cxx shillings; for an
    _ealdorman’s_ with lxxx shillings; for a _King’s thane’s_ with lx
    shillings; for that of a _gesithcund_-man having land with xxxv
    shillings: and _according to this let them make legal denial_.

The _burg_-bryce is the same thing as the _burh_-bryce--the breaking
into the _burh_. And if we compare the ‘bots’ of this clause with the
_burh_-bryce of King Alfred’s s. 40 (_supra_, p. 372) we see that he was
not merely copying King Ine’s clause. Nearly as they may resemble one
another, there are marked differences between the two clauses.

The king’s burh-bryce in King Ine’s Laws is the same as King Alfred’s.
The ealdorman’s is eighty scillings instead of sixty. The king’s thane
takes the ealdorman’s place with sixty, and the gesithcund-man’s
burh-bryce in King Ine’s Laws is practically the same as the
twelve-hyndeman’s in King Alfred’s laws.

[Sidenote: The gesithcund-man’s judicial position.]

The gesithcund-man we have met before in one of the fragments of early
English law, but so far as relates to Wessex he appears in the Dooms of
Ine for the first and last time, and we shall have to consider by-and-by
how far he is the same person as the twelve-hyndeman. But for the present
it is sufficient to note that he is mentioned along with the king’s thane
and the ealdorman apparently in order to state the extent to which his
oath was to be taken as valid in judicial evidence, or whatever is meant
by the words ‘and according to this make legal denial.’

[Sidenote: Laws as to theft.]

The chief obstacle to the maintenance of the peace seems to have been the
frequency of thefts and homicide of all kinds. The connection between
homicide and theft is the subject of several clauses in the Laws of Ine.
And as they bring into notice the liability of the kindred it may be well
to consider them in order.

These are some of the clauses in the Laws of King Ine with reference to
the slaying of a thief:--

    Gif þeof sie gefongen swelte he deaðe oþþe his lif be his were
    man aliese.

    (12) If a thief be seized let him perish by death or let his life
    be redeemed according to his wer.

    Cierlisc mon gif he oft betygen wære gif he æt siþestan sie
    gefongen slea mon hond [of] oþþe fot.

    (18) A ceorlisc man, if he have often been accused, if he at last
    be seized, let his hand or foot be cut off.

    Gif feorcund mon oþþe fremde butan wege geond wudu gonge & ne
    hrieme ne horn blawe, for þeof he bið to profianne oþþe to
    sleanne oþþe to aliesanne.

    (20) If a far-coming man or a stranger journey through a wood
    out of the highway and neither shout nor blow his horn he is to
    be held for a thief either to be slain or redeemed.

[Sidenote: The ge-geldas and kindred of the thief.]

Then comes the question what happens if a man should seize a thief and
slay him as a thief. The next clause goes on to state that in the case
of the thief slain in the wood the slayer must declare that he slew the
man for a thief, and then neither the lord nor the _ge-gildas_ of the
slain could demand a wergeld. But if he should conceal the slaying and
it became known after a time, the way was open for the kindred of the
supposed thief to exculpate him by oath and so claim his wergeld, from
the slayer.

Where there is no concealment, the kindred of the thief must swear that
there shall be no vengeance on him for delivering up the thief.

    Se [þe] þeof gefehð [he] ah x. scill. ⁊ se cyning þone þeof ⁊ þa
    mægas him swerian aðas unfæhða.

    (28) He who seizes a thief shall have ten scillings and the king
    the thief; and let the kindred [of the thief] swear to him oaths
    of ‘unfæhthe.’

If the man who had seized the thief let him go he was liable to pay
‘wite’--and if, as we have seen, an ‘ealdorman’ did so it was at the risk
of losing his ‘shire.’

Theft seems to have been an increasing crime, for further on in Ine’s
Laws there are repetitions of some of these clauses, with slight
additions, showing that the Dooms of Ine were added to from time to time
(s. 35 and s. 27).

[Sidenote: The ceorlisc and the gesithcund classes.]

We have seen how severe a penalty was attached to the crime against
the king’s peace of letting a thief once seized escape. The following
clause is still more severe upon any one harbouring a fugitive thief
or other outlaw, and it introduces again the division of classes as
regards wergelds into gesithcund and ceorlisc, but without mentioning the
wergelds of each class.

    Gif mon cierliscne monnan flieman-feorme teo be his agnum were
    geladige he hine. Gif he ne mæge gielde hine [be] his agenum were
    ⁊ se gesiðmon [eac] swa be his were.

    (30) If a man accuse a ceorlisc-man of harbouring a fugitive
    [thief?] let him clear himself according to his own wer. If he
    cannot, let him pay for him according to his own wer, and the
    gesith-man in like manner according to his wer.

This ‘clearing himself according to his own wer’ alludes evidently to the
oath of himself and his oath-helpers and shows that the oath required
to clear the gesithcund-man from the charge was a greater one than that
required to clear a ceorlisc-man. This was doubtless the case throughout,
but apparently it had become needful to strengthen the oath of both
classes. The following clause required that in the oath of both the
gesithcund and ceorlisc-man in denial of homicide there should be among
the oath-helpers ‘a King’s oath of 30 hides.’

[Sidenote: The oaths to be in their hyndens of co-swearers.]

    Seþe bið wer-fæhðe betogen ⁊ he onsacan wille þæs sleges mid aðe
    þonne sceal bion on þære hyndenne an kyning [æðe] be xxx hida swa
    be gesiðcundum men swa be cierliscum swa hwæðer swa hit sie. Gif
    hine mon gilt þonne mot he gesellan on þara hyndenna gehwelcere
    monnan [and, _but not in H_] byrnan ⁊ sweord on ꝥ wer-gild gif he
    þyrfe.

    (54) He who is charged with _wer-fæhthe_ and he is willing to
    deny the slaying on oath; then shall there be in the ‘hynden’ one
    king’s oath of 30 hides as well for a gesithcund-man as for a
    ceorlisc-man whichever it may be. If he has to pay him, then may
    he give the man of any one of those ‘hyndens’ a coat of mail and
    a sword in the wergeld if he need.

The last part of the clause is ambiguous, but on the whole, taking into
account the Latin of the ‘Quadripartitus’ and Liebermann’s suggested
translation and the difficulty of the various other suggested readings,
I think it is most probable that the meaning may be, that if the man
charged cannot get the required ‘king’s oath’ or that of another hynden
without paying for it, he may give ‘a coat of mail and a sword’ to the
‘hynden’ if it should be needful. We may have to recur to this section,
but without attempting to build anything upon this more than doubtful
addition to it. Nothing important, I think, turns upon it.

[Sidenote: Both classes must follow to the fyrd.]

The following is important as showing that both the gesithcund and
ceorlisc classes were under the military obligation to follow to the fyrd.

    Gif gesiðcund mon landagende forsitte fyrde geselle cxx scill. ⁊
    þolie his landes, unlandagende lx scill. cierlisc xxx scill. to
    fierdwite.

    (51) If a gesithcund-man owning land neglect the fyrd, let him
    pay 120_s._ and forfeit his land, one not owning land 60_s._; a
    ceorlisc-man 30_s._ as fyrd-wite.

The recurrence in so many clauses of Ine’s Laws of the division of
classes into gesithcund and ceorlisc leads to the conclusion that it must
have been a very prominent one.

It was accepted in the Laws of Ine as a fact existing and of common
knowledge, with no mark upon it of novelty or innovation. The distinction
was evidently ancient and radical, and yet the word ‘gesithcund’ is not
met with in any later laws.

       *       *       *       *       *

[Sidenote: Mention of twelve-, six-, and twy-hynde classes.]

Throughout the 76 clauses of the Laws of Ine only one makes direct
mention of the division of classes into twelve-hynde and twy-hynde, the
distinction so generally made in the later laws, and in this clause, as
in King Alfred’s Laws, the six-hynde class also appears:--

    Aet twy-hyndum were mon sceal sellan to mon-bot xxx scill. æt
    vi-hyndum lxxx scill. æt twelf-hyndum c.xx.

    (70) With a twy-hyndeman’s wer shall be given as man-bot xxx
    scillings with a six-hynde’s lxxx scillings, [? lx s.], with a
    twelve-hynde’s cxx scillings.[249]

The man-bot was, as we have seen, the payment to a lord for the loss of
his man.

There is an indirect mention of wergelds in s. 34, which states that any
one who has been in a foray in which a man has been slain must prove
himself innocent of the slaying and make bot for the foray according to
the wergeld of the slain. If his wergeld be 200_s._ he must make bot with
50_s._, and the like justice was to be done with respect to the ‘dearer
born.’

We may assume from this and the later evidence that already the wergeld
of the twelve-hyndeman was 1200 scillings, and that of the twy-hyndeman
200 scillings, though in the Dooms of Ine this is not otherwise directly
stated. The laws take it for granted that the amount of the wergelds was
common knowledge, as in so many other cases.

       *       *       *       *       *

[Sidenote: The six-hynde class.]

The mention of the six-hynde class in addition to the twelve-hynde and
twy-hynde classes makes it a matter of importance to learn what manner of
persons were included in the six-hynde class.

The Laws of King Alfred, as we have seen, generally mention the
six-hyndeman with the other classes, but without giving any clue to an
answer to the question to what social rank he belonged. In the Laws of
Ine, however, a distinct clue is given, and it is one which accords
with Continental usage and suggests a reason for the disappearance of
the six-hyndeman from the later laws. He is mentioned again after King
Alfred’s time only in the so-called Laws of Henry I.

The clauses relating to this subject are important enough to claim
consideration in a separate section.

       *       *       *       *       *

[Sidenote: The gafol-gelda and the gebur.]

One other important social distinction, or division of classes, appears
already in the Laws of Ine, viz. that which existed between possessors
of land and _gafol-geldas_ and _geburs_ who were, as we should say,
_tenants_ on the land of others. We shall have to return to the
consideration of this distinction and to note the fact that it is in
these Laws of Ine that the _gebur_ appears as almost the equivalent
of the _gafol-gelda_, while they afford incidental evidence also that
the typical holding of the gafol-gelda (and thus of the gebur) was the
‘yardland’ or virgate of open-field husbandry.

The mention of the gafol-gelda and the gebur occurs in s. 6.

    Gif hwa gefeohte on cyninges huse sie he scyldig ealles his
    ierfes ⁊ sie on cyninges dome hwæðer he lif age þe nage. Gif
    hwa on mynstre gefeohte hund twelftig scill. gebete. Gif hwa on
    ealdormonnes huse gefeohte oþþe on oðrer geþungenes witan lx
    scill. gebete he ⁊ oðer lx geselle to wite.

    (6) If any one fight in the _king’s house_, let him be liable in
    all his property and be it in the king’s dooms whether he shall
    or shall not have life. If any one fight in a _minster_, let him
    make bot with cxx scillings. If any one fight in an _ealdorman’s_
    house or in any other distinguished wita’s, let him make bot with
    lx scillings and pay a second lx scillings as wite.

    Gif he þonne on gafol-geldan huse oþþe on gebures gefeohte c.xx
    scill. to wite geselle ⁊ þæm gebure vi scill.

    But if he fight in a _gafol-gelda’s_ house or in a _gebur’s_, let
    him pay cxx scillings as wite, and to the gebur vi scillings.

    And þeah hit sie on middum felda gefohten hund twelftig scill. to
    wite sie agifen.

    And though it be fought on midfield let cxx scillings be given as
    wite.

[Sidenote: The gafol-gelda and gebur have only a six scilling fightwite.]

This clause is intelligible if we follow the principle that fighting
anywhere is a breach of the king’s peace. The king, therefore, in every
case and wherever it happens is entitled to a wite of 120 scillings.
But if it happens within the house or precinct of an ealdorman or of
any other chief member of the Witan the amount is divided between the
king and his official. If the fighting is in the precinct or house of a
gafol-gelda or gebur the king still gets his full wite of 120 scillings,
and an additional six scillings is to be given to the gebur, just as in
King Alfred’s Laws the same amount is to be given to the ceorlisc man for
fighting in his ‘flet.’

This clause forms a valuable groundwork of evidence as to the position
of the gafol-gelda under West Saxon law, and we shall have to recur to
it when we further consider the position of the ceorlisc class at the
date of King Ine’s Dooms. The omission of the gesithcund class from
this section, unless included as distinguished members of the Witan,
can hardly be accidental, but it is not easy at first sight to divine a
plausible reason for it.

       *       *       *       *       *

Let us for a moment try to recognise the position to which so far the
Dooms of Ine have brought us.

We seem able in those already quoted to trace a process at work combining
distinctions of classes of different origins and based upon different
lines of thought.

We find a very marked and prominent division of classes into gesithcund
and ceorlisc alongside of hardly more than incidental mention of the
division of classes so prominent afterwards into twelve-hynde and
twy-hynde. In King Alfred’s Laws we could trace no practical distinction
between the twy-hynde and ceorlisc classes. We could not distinguish
between them. All distinction at any rate evaded our notice. We have now
to ask the double question what was the distinction between gesithcund
and twelve-hynde, as well as what was the distinction between ceorlisc
and twy-hynde.

The chief question raised by King Alfred’s Laws was whether any great
distinction existed between the ‘ceorl who sits on gafol land’ and other
members of the ceorlisc class. The Laws of King Alfred gave us no clue
on this point. It seemed as though, after all, the ceorlisc class must
have been so generally gafol-geldas that practically the twy-hynde and
ceorlisc class might be spoken of roughly and inclusively as ‘ceorls
who sit on gafol land,’ and that this ‘sitting on gafol land’ might be,
after all, the fairly distinctive mark of the ceorlisc class for whom
King Alfred claimed a twy-hynde wergeld as ‘equally dear’ with the Danish
lysing.

[Sidenote: The gafol-gelda and gebur of Ine’s laws put in the place of
the ceorlisc man of King Alfred.]

And now in this clause 6 of King Ine’s Laws we find the gafol-gelda or
gebur put directly into the place of the ceorlisc man of King Alfred’s
Laws with the same penalty of six scillings payable to him for fighting
in his house or his ‘flet.’

    _King Alfred’s Laws_, s. 39.

    If any one fight in a ceorlisc man’s flet, with six scillings let
    him make bot to the ceorl.

    _King Ine’s Laws_, s. 6.

    But if he fight in a gafol-gelda’s house or in a gebur’s, let him
    pay … to the gebur six scillings.

It might be said at first sight that here surely is a clear trace of the
degradation of the ceorl into a gafol-gelda during the 200 years between
the Laws of King Ine and King Alfred. For, it might be said, the ceorl of
King Alfred’s Laws has the same bot for the fighting in his house as that
which the gafol-gelda had under Ine’s Laws 200 years earlier. This may be
so. But how do we know that the gafol-gelda of King Ine’s time was not
already the typical ceorl as he seems to have been in King Alfred’s time?
In that case there would be no sign of degradation of the ceorl into the
gafol-gelda. Or at any rate if there had been a degradation from some
original higher position and status it had already taken place before
the time of King Ine. Our judgment on the position of the ceorlisc class
under King Ine’s Laws must still be reserved.


IV. THE POSITION OF STRANGERS IN BLOOD UNDER KING INE’S LAWS.--THE
SIX-HYNDEMAN.

[Sidenote: Strangers in blood.]

The question of the position under West Saxon law of strangers in blood
is one of much interest, and we have reserved the clauses relating to it
for separate consideration.

There may have been several different classes of strangers.

[Sidenote: How were the earlier conquered inhabitants treated?]

How far there was a considerable substratum of conquered Romano-British
inhabitants is a very vexed question. That there were such in the
outlying and recently conquered districts is certain. Mr. Coote’s view
may not be wholly mistaken that a Romano-British population, living,
as on the Continent, under their own laws and customs, existed in most
districts, especially in the towns.

These strangers may some of them have had land and some of them not.
Certainly not all of them were regarded as theows or thralls.

To what class, then, did they belong? And how were they treated? What
degree of freedom was granted them, and what was their wergeld, if they
had any?

It is to the Laws of Ine that we must go for the answers to these
questions. And we start on the inquiry seeking light also upon the
position of the as yet unexplained six-hynde class so often mentioned in
the Laws of King Alfred but never in the later laws.

The only hint we have had as yet as to the meaning of the six-hynde class
is whether gesithcund-men not having land may not have belonged to it.

[Sidenote: The _wealh_ or _Wilisc-man_ with five hides was six-hynde.]

The wergelds of the ordinary classes of tribesmen were doubtless too well
known to require more than incidental mention in King Ine’s Dooms, but
there are several clauses or fragments of clauses specially mentioning
the wergelds of the _wealh_ and of the _Wilisc_-man.

    Wealh gif he hafað fif hyda he bið syx hynde.

    (24) A _wealh_ if he have five hides ‘he shall be six-hynde.’

    Gif Wylisc mon hæbbe hide londes his wer bið c.xx scill. gif he
    þonne hæbbe healfe lxxx scill. gif he nænig hæbbe lx scillinga.

    (32) If a Wylisc-man have a hide of land his wer shall be cxx
    scillings, but if he have half a hide lxxx scillings, if he have
    none lx scillings.

    Cyninges hors-wealh seþe him mæge geærendian þæs wer-gield bið cc
    scill.

    (33) The king’s ‘horse-wealh’ who can do his errands, his wergeld
    shall be cc scillings.

It will be noticed that the wergeld of the _Wilisc_ man with one hide of
land is one fifth of the wergeld of the _wealh_ with five hides, so that
wealhs and Wilisc men seem to be treated on the same lines--as if the two
words meant the same thing.

[Sidenote: The Gallo-Roman ‘_wala_.’]

It is not easy to draw a distinction between the ‘wealh’ and the
‘Wilisc’ man. ‘Wilisc’ is certainly used as the adjective corresponding
to ‘wealh,’ though sometimes (as _e.g._ in ‘Wilisc ale’) for something
specially Welsh. In the Lex Salica, as we have seen, the Gallo-Roman
living under Roman law, according to the Malberg gloss was a ‘_Wala_’
with a wergeld half that of the ‘ingenuus’ living under Salic law. And,
without pushing this meaning so far as Mr. Coote was inclined to do, we
may fairly, I think, look upon the word ‘wealh’ as generally embracing
not only natives of Wales and West Wales, but also the wider class
of persons of the conquered populations, whether Welsh or Britons or
Romano-Britons, who were not recognised as of Anglo-Saxon blood.

[Sidenote: The _Wallerwente_ of Yorkshire.]

We may call in the later evidence of the Northumbrian Priest-law[250] in
illustration. The use of ores and half-marks in this document and its
being, so to speak, domiciled in York, seem to connect it with the period
of the Northmen’s conquest of Northumbria, when York was its capital and
as yet the tide of battle had not been turned--_i.e._ shortly before
the date of the Compact between Alfred and Guthrum. In this Priest-law
the penalty for the practice of heathen rites on the part of a king’s
thane was ten half-marks, and if he wished to deny the charge it must
be with ten named by himself, ten named by his kindred (_maga_), and
ten _Wallerwente_, and if he failed in the denial he had to pay the ten
half-marks, half of which went to the church and half to the king.

And so also in the case of the ‘landagende man’ who had to pay six
half-marks: he too must deny with as many of his like (_gelicena_) and as
many _wente_ as the king’s thane. And so also in the case of a ‘cyrlisc’
man.

It is quite clear that these _Wallerwente_ were _free_ inhabitants of
the district, for their oaths were taken in evidence, which would not
have been done had they been theows. The Wallerwente were, on the other
hand, not recognised as ‘ceorlisc’ Saxons. They were obviously the native
Celtic inhabitants of the great plain of York[251]--the _gwent_ or basin
of the Derwent and the Ouse. The locality is fixed by the clause which
restricts the Sabbath day’s journey on necessity to six miles out of
York.

[Sidenote: Under Frankish law the Gallo-Romans had half-wergelds.]

Now, we have seen that under Frankish laws the Gallo-Roman population
living under Roman law had _half_-wergelds. If the freeman living
under Salic law had a wergeld of 200 solidi the ‘Romanus possessor’
had a wergeld of 100 solidi. And so in the same way, returning to the
Laws of Ine, while the gesithcund or other landed Wessex freeman was a
twelve-hyndeman, the wealh who had five hides was reckoned as six-hynde.

[Sidenote: The wealh with five hides had a half-wergeld.]

We have seen that the English ceorl who rose to the possession of five
hides and paid gafol to the king, and with coat of mail and over-gilded
sword followed to the fyrd, became gesithcund with a wergeld of 1200
scillings. It is quite in accordance with tribal feeling as shown
in Continental usage that the stranger in blood, whether Welsh or
Romano-British, who had risen in the same way to the possession or
occupation of five hides should be six-hynde with a half-wergeld of 600
scillings.

We have quoted the Northumbrian Priest-law and noted that its penalties
in half-marks and ores suggest that it belongs to the period before King
Alfred’s Compact with Guthrum, during which York was the capital of the
Northmen’s kingdom. It is interesting to see that in the fragment of
North People’s Law quoted in the previous chapter, belonging probably
to the same district and to the same period, some of the clauses with
reference to the Wilisc man are evidently copied from the Laws of Ine
though with some additional matter and perhaps some slight errors in the
figures.

    And if a Wilisc-man thrive so that he have a hide of land and can
    bring forth the King’s gafol, then is his wergeld 120 scillings.
    And if he thrive not except to half a hide, then let his wer be
    80 scillings. And if he have not any land, let him be paid for
    with 70 scillings [? 60].

[Sidenote: The conquering Northmen gave the hauld a wergeld twice that of
the thane.]

And it is worth notice that it was in this very document that the
Northmen as conquerors, while leaving the English wergeld of the thane
at 2000 thrymsas or 1200 scillings, gave to their own ‘hold’ a double
wergeld of 4000 thrymsas.

[Sidenote: The six-hynde class died out.]

We may therefore regard the six-hyndeman of King Ine and King Alfred’s
Laws as probably the Wilisc man with five hides or more. There does not
appear to be anything in King Alfred’s Laws to lead us away from this
conclusion. Any other would leave the complete silence of King Alfred’s
laws with regard to the Wilisc class unexplained, unless it could be
considered that in the turmoil of the Northmen’s invasions and the stress
of war the Wilisc class had already become more or less amalgamated with
the Saxon population by the force of their common interests against the
invaders.

The silence of the later laws as to a six-hynde class may probably be
explained by the same considerations.

[Sidenote: The Wilisc man under Ine’s law only half as worthy as the
Englishman.]

Passing from the Wilisc man who was six-hynde in consequence of his
landed position to the Wilisc man viewed simply as a stranger in blood,
there is further evidence that as a stranger he was regarded as only half
as ‘worthy’ as an Englishman. In s. 46 of Ine’s Laws it is stated that an
oath-worthy person charged with theft is to deny the charge with an oath
of 120 hides if the accuser be an Englishman, but with only 60 hides if
the accuser be a Wilisc man.

    Ðonne mon monnan betyhð ꝥ he ceap forstele oþþe forstolenne
    gefeormie þonne sceal he be lx hyda onsacan þære þiefðe gif he
    að-wyrðe bið.

    (46) When a man charges another that he steals, or harbours
    stolen cattle, then shall he deny the theft with lx hides if he
    be oath-worthy.

    Gif þonne Englisc onstal ga forð onsace þonne be twy-fealdum.

    If, however, an English charge of theft[252] come forward, let
    him then deny it with twice as many.

    Gif hit þonne bið Wilisc onstal ne bið se að na þe mara.

    But if it be a Wilisc charge, the oath shall not be the increased
    oath.

This clause does not tell us whether the Wilisc man was considered to be
oath-worthy or not. Probably he would not be as against a Saxon. It only
states that when the charge of theft was made by an Englishman the oath
was to be one of twice as many hides as would be required to deny the
charge of a Wilisc man.

[Sidenote: In the ‘Ordinance of the Dun-setas’ strangers have only
half-wergelds and must go to the ordeal as not oath-worthy.]

Corroborative evidence as regards the half-wergelds and oath-worthiness
of the wealh class may be found in an ordinance of later date, but
belonging to Wessex, and it may be quoted as throwing strong light upon
the position of the Wilisc or wealh class (_wealþeode_) in apparently a
border district, where Saxons and wealhs met together with a boundary
of a river between them. It is entitled an ‘Ordinance respecting the
Dun-setas.’[253]

The leading fact throughout this document is that the two peoples met
avowedly as strangers. Its aim was to keep the peace and to protect the
owners of cattle on each side of the stream from the raids of their
neighbours on the other.

They are recognised as strangers to each other and on principle treated
reciprocally as such. Denial of a charge by oath and oath-helpers, unless
by special agreement, is assumed to be of no use and evidently out of
place between strangers in blood. Consequently the ordeal was the only
answer to a charge of theft.

    Ne stent nan oðer lád æt tihtlan bute ordal betweox Wealan &
    Englan, bute man þafian wille.

    There stands no other purgation in an accusation save the ordeal
    between Wealas and English unless it be allowed.

This was fully in accordance with tribal custom no less than the further
fact that their wergelds were, obviously for the same reason, to be
half-wergelds.

    Gyf Wealh Engliscne man ofsleane þearf he hine hiden-ofer buton
    be healfan were gyldan ne Ænglisc Wyliscne geon-ofer þe ma sy he
    þegen-boren sy he ceorl-boren healf wer þær æt-fealð.

    If a Wealh slay an Englishman he need not pay for him on this
    side except with half his wer, no more than the Englishman for a
    Wylisc on that side, be he thane-born, be he ceorl-born, one half
    of the wer in that case falls away.

[Sidenote: These wylisc men were in Wessex.]

In this document the wealh is treated according to tribal principle
as a stranger in blood, both as regards recourse to the ordeal, and
the half-wergeld. And the word ‘wyliscne’ is used as the appropriate
adjective distinguishing the wealh from the Englishman. So that in this
case ‘wealh’ and ‘wylisc’ mean the same thing. Further, this evidence,
though later in date probably than King Alfred’s Laws, is practically
Wessex evidence, because, though the geographical position of the
Dun-setas is not accurately known, their connection with the West Saxons
is the one thing which is clear.[254]

Returning to the Laws of Ine, as the wergeld of the Wilisc man with five
hides was a half-wergeld of 600 scillings it might be supposed that the
ordinary Wilisc man’s would be a half-wergeld of 100 scillings. But it
was not exactly so, for, according to s. 32 above quoted, the Wilisc man
with one hide had a wergeld of 120 scillings, one with half a hide 80
scillings, one without any land 60 scillings.

In an isolated clause added to s. 23 a somewhat different statement is
made. The wealh gafol-gelda has the same wergeld as if he had a hide of
land, and the wealh theow the same wergeld as the Wilisc man without land.

[Sidenote: Various classes of wealhs and Wilisc men.]

    Wealh gafol-gelda cxx scill. his sunu c. Ðeowne lx. somhwelcne
    fiftegum. Weales hyd[255] twelfum.

    (23) A wealh gafol-gelda cxx scillings, his son c: a theow lx:
    some fifty: a wealh’s skin twelve.

That the theow of this passage is the ‘_wealh-theow_’ with a wergeld of
60 scillings is clear from sections 54 and 74, the first of which relates
to the ‘_Wilisc wite theow_.’

    Wite-þeowne monnan Wyliscne mon sceal bedrifan be twelf hidum swa
    þeowne to swingum. Engliscne be feower & þrittig hida.

    (54) A Wilisc wite-theowman shall be followed up with twelve
    hides like a theow to the scourging; an English with four and
    thirty hides.

The wite-theow was a person who had once been free but from debt or
calamity had sunk into thraldom.

The English ‘wite-theow’ is dealt with thus in the Laws of Ine.

    Gif wite-þeow Englisc-mon hine forstalie ho hine mon & ne gylde
    his hlaforde. Gif hine mon ofslea ne gylde hine mon his mægum gif
    hie hine on twelf-monðum ne aliesden.

    (24) If a wite theow, an Englishman, steal himself away, let him
    be hanged and nothing paid to his lord. If any one slay him let
    nothing be paid to his kindred if they have not redeemed him
    within twelve months.

His free kindred might ignore him if they liked: there was no need for
them to pay the wergeld of a kinsman who had forfeited his freedom.

Section 74 relates to the _theow-wealh_, but this term would seem to
apply to the case of the _wealh-wite-theow_.[256]

[Sidenote: The theow-wealh.]

    Gif þeow-wealh Engliscne monnan ofslihð þonne sceal seþe hine ah
    weorpan hine to honda hlaforde ⁊ mægum oþþe lx scill. gesellan
    wið his feore. Gif he þonne þone ceap nelle fore gesellan þonne
    mot hine se hlaford gefreogan gielden siþþan his mægas þone wer
    gif he mæg-burg hæbbe freo. Gif he næbbe hedan his þa gefan. Ne
    þearf se frigea mid þam þeowan mæg-gieldan buton he him wille
    fæhðe of-aceapian ne se þeowa mid þy frigean.

    (74) If a _theow-wealh_ slay an Englishman, then he who owns
    him shall deliver him up to the lord and the kindred or give 60
    scillings for his life. But if he will not give that sum for him,
    then must the lord enfranchise him. Afterwards let his kindred pay
    the wer if he have a free _mæg-burh_. If he have not let his foes
    take heed to him. The free need not pay ‘mæg-bot’ with the theow
    unless he be desirous to buy off from himself the feud: nor the
    ‘theow’ with the free.

This clause is repeated in the so-called Laws of Henry I. c. lxx., but
the amount named is 40 scillings instead of 60 scillings. Sixty scillings
is double the manbot of the twy-hynde man in s. 70 of Ine’s Laws, and it
may be the double value of the wealh-theow to his lord.


V. THE TWELVE-HYNDE AND TWY-HYNDE MEN AND THEIR HYNDENS OF OATH-HELPERS.

[Sidenote: The meaning of twelve-hynde and twy-hynde.]

The silence of the Dooms of Ine upon some of the most important matters
relating to ancient custom is no doubt disappointing, but their position
as almost our only direct evidence of the customs of Wessex for the first
two or three centuries after the conquest of Britain gives to every
hint a value. Some of the clauses are so isolated that if we could not
approach them with light from other sources we should lose the right clue
to their meaning. It is only by following the course we have adopted
of working backwards from the known to the unknown that we can rightly
interpret some of the clauses by reading into them some things not
directly mentioned by them.

And yet if we try to understand such a fundamental matter as the meaning
of the division of classes into _twelve-hynde_ and _twy-hynde_[257] it is
to the Dooms of Ine that we must go.

[Sidenote: Connected with the system of oath-helpers.]

It is in these Dooms that the meaning of the words twelve-hynde and
twy-hynde is most clearly connected with the system of compurgation and
the oaths of the oath-helpers. It is moreover in these Dooms that at
first sight the mystery is made still more mysterious by the statement of
the value of the oaths in so many hides.

[Sidenote: Value of oaths in hides.]

The fact of this connection between the value of the oaths and hides
was first brought to our notice in the Dialogue of Archbishop Egbert
apparently as a matter already well known and established. And it was his
claim that the oaths of his priests should be reckoned as oaths of 120
hides which confirmed what, from the Laws of Ine, was hardly more than
doubtful inference that this was the value of the oath of the gesithcund
or twelve-hynde class.

The Archbishop’s mention of it confirmed it, but left its meaning and
origin as obscure as ever. And yet the whole question of the structure
of Saxon society is so mixed up with the right understanding of the
twelve-hynde and twy-hynde division of classes that unless further light
can be let into it a good deal of what we should like to see clearly must
remain unhappily enveloped in fog.

[Sidenote: Hides were family holdings. The _familia_ of Bede.]

Archbishop Egbert’s substitution of the phrase so many _tributarii_ or
_manentes_ for the ‘so many hides’ of the Laws of Ine obliges us to
regard the _hide_ of Ine’s Dooms in this connection as equivalent to
the ‘familia’ of Bede. The Saxon translator of the Latin text of Bede
translated the word _familia_ sometimes by ‘hide’ and sometimes by
_hiwisc_ or family. In this connection it is also worth noting that,
although writing a century later than Egbert and two centuries after the
date of Ine’s Laws, the translator of Bede had not cast off all traces
of tribal tradition, for he consistently used the word _mægthe_ as the
equivalent of Bede’s ‘provincia.’ He still thought of tribes and peoples
rather than of districts and provinces. His ideas in these things ran on
tribal rather than on territorial lines. So to him the hide was still the
_family_ unit, and the greater kindred or tribe, as in Beowulf, was the
_mægthe_. In Beowulf we saw that some of them conquered others and made
them pay tribute. So they did in Bede’s time.

[Sidenote: _Manentes_ and _tributarii_ of Egbert.]

While, then, we are obliged to connect the value of oaths reckoned as of
so many hides with hides which were family holdings, or, as Egbert calls
them, _manentes_ and _tributarii_, the original meaning of the connection
must be sought for in tribal conceptions.

It seems to be quite clear that in saying that the twelve-hyndeman’s
oath was an oath of 120 hides, and the ceorl’s presumably of 20 hides,
we have not yet necessarily struck the real train of thought underlying
the connection between oaths and hides. For it is absurd to think that
the twelve-hyndeman could pretend to the occupation or possession of 120
hides or family holdings, or the ceorl to 20 hides. They could do no such
thing. The ceorl, in later times at all events, who had the twy-hynde
wergeld was ‘the ceorl who sits on gafol land’--a gafol-gelda on some one
else’s land. And to the great-grandson of the ceorl who had risen to five
hides, the continued possession of five hides was sufficient to qualify
him for a _sithcund_ status worth a wergeld of 1200 shillings or 2000
_thrymsas_.

The question, therefore, needs closer examination if we would rightly
understand the meaning underlying the distinction between the twy-hynde
and twelve-hynde social status.

Let us then in the first place try to understand the meaning of the word
_hynde_ which gives to the distinction between twy-hynde and twelve-hynde
its important significance.

[Sidenote: The meaning of ‘hynden.’]

The word separated from its prefix apparently occurs in only two places
in the Laws. It occurs for the first time in an important clause of the
Laws of Ine. And once more it occurs in the Laws of Athelstan, in the
‘Judicia Civitatis Londoniæ.’ A word which occurs again in Anglo-Saxon
laws after an interval of more than two centuries may and perhaps must
have had a well-known original significance as a legal term though found
nowhere else in Anglo-Saxon literature.

[Sidenote: The set of oath-helpers.]

In Ine s. 54 the word is used twice. The first part of the clause, which
has already been quoted, is as follows:--

    (54) He who is charged with werfæhthe [man-slaying] and is
    willing to deny the slaying on oath, then shall there be _in the
    hynden_ one King’s oath of xxx hides as well for a gesithcund man
    as for a ceorlisc man whichsoever it may be.

In this first mention of the _hynden_ the word must mean the set of
oath-helpers supporting their kinsman with their oaths, and the clause
lays down the rule that in every such set of oath-helpers in the case
of ‘slaying’ there must be a ‘King’s oath of thirty hides.’ But what
is this King’s oath of thirty hides which is to be in the _hynden_ of
oath-helpers of both the twy-hynde and twelve-hynde man in case of
man-slaying?

[Sidenote: The 30 hides oath of the King’s thane.]

In the Compact between Alfred and Guthrum is a clause, already quoted,
immediately following the statement of the wergelds of Dane and English,
and the declaration that they were to be ‘equally dear,’ which seems to
be almost a repetition of the clause in Ine’s Laws, but without using the
word _hynden_.

    (3) If a King’s thane be charged with man-slaying, if he means to
    clear himself by oath, let him do it with twelve King’s thanes,
    and if a lesser man than a King’s thane be charged, let him clear
    himself with eleven of his like and with one _King’s thane_.

We have seen that the King’s thane is mentioned in the Laws of Ine
(s. 45), and that his social position was much higher than that of
the ordinary _gesithcundman_. The bot for his _burg-bryce_ was sixty
scillings--_i.e._ halfway between that of the ealdorman at eighty
scillings and that of the gesithcundman having land at thirty-five
scillings.

The King’s thane’s oath seems, then, to be what is meant by the King’s
oath of thirty hides in the Laws of Ine. But the King’s thane’s oath
of thirty hides being the oath of a class higher than that of the
gesithcundman, how is it that the oath of the latter could be a 120 hide
oath?--_i.e._ worth four times as much as that of his superior, the
King’s thane.

At first the two statements seem to clash, but on reflection a spark of
light seems to come from the collision. The King’s thane’s oath in this
case is only _one oath in the hynden of twelve_ oath-helpers supporting
the twelve-hynde or twy-hynde man. When a King’s thane was himself
charged with man-slaying the later law declares that he must clear
himself with twelve King’s thane’s oaths. The full oath of the whole
hynden, himself and his co-swearers, would therefore be equivalent to an
oath of 360 hides--_i.e._ worth three times the 120 hide oath of--may
we not now say?--the twelve oath-helpers forming the _hynden_ of the
gesithcundman.

[Sidenote: The single oath of the twelve-hyndeman was of 10 hides.]

The King’s thane’s official position was sufficient to justify the
threefold value of his oath and that of the several oaths of his hynden.
And if the 120 hide oath of the twelve-hyndeman be the full oath of
himself and his hynden of oath-helpers, then his single oath would be a
ten hide oath, which is much more within reason. The analogy would be
complete were it not for the necessity of including in the hynden of the
gesithcundman a King’s thane’s oath of thirty hides; but this may have
been an afterthought. The mention of it in the law of Ine is in itself
presumptive evidence that it was a new and an additional requirement
beyond what Wessex custom had originally required.[258]

[Sidenote: The oath of himself and oath-helpers was of 120 hides.]

So far, then, it seems to be pretty clear that the 120 hide oath of the
twelve-hyndeman was the twelvefold oath of himself and his hynden of
oath-helpers, each of whose single oaths was, like his own, a ten hide
oath.

[Sidenote: The oath-helpers were kinsmen.]

Adhering, then, to the meaning of _hynden_ as the set of oath-helpers,
we have next to keep in mind that the oath-helpers were naturally kinsmen
representing the slayer’s kindred and their responsibility for the
wergeld of the person slain if their kinsman was the slayer, and by this
consideration we are once more thrown back upon tribal custom.

[Sidenote: The twy-hyndeman and leysing’s want of kindred.]

And when in the Compact between Alfred and Guthrum we see the ‘ceorl
who sits on gafol-land’ put in the same position as the Norse ‘leysing’
or newly made freeman whose kindred was imperfect, howbeit in course of
being widened by each generation, we seem again to be put upon the scent
that the twy-hynde condition of the Saxon ceorl may also originally have
had something to do with his imperfect kindred.

When further, in the remarkable fragment already quoted, we see the Saxon
ceorl himself rising in the social scale, getting land ‘to the King’s
utware,’ having a ‘coat of mail, helmet, and over-gilded sword’ and doing
direct service to the King, until at last, his son’s son having had that
land in succession, the great-grandchildren become of _sithcund_ kin
with twelve-hynde wergelds, the scent seems to lie all the more strongly
in the direction of the tribal rules of kindred. For it is as though we
had watched the process of the growth of kindred in this case till the
_sithcund_ condition was reached, and the full hynden had been produced,
thus raising the twy-hynde into a twelve-hynde man.

The leysing, we learned from the Norse laws, being a newly made freedman,
had at first no freeborn kin from whom he could inherit or who could
inherit from him. He had no one of his kin to swear for him or to
fight for him till he had sons and grandsons. For three generations the
descendants were leysings still. And though during that time kinsmen
enough may have grown up around them to swear for them yet still their
oaths may well have been reckoned of lower value than those of the hauld,
each of whose oath-helpers had a full kindred behind him to support him.
It took another three generations to put the leysing in this position.

[Sidenote: The full oath of a man with 12 oath-helpers of full kindred
twelve-hynde.]

There may, then, perhaps be involved in this matter of imperfect and
perfect kindred a principle of tribal custom originally underlying the
terms twelve-hynde and twy-hynde. The oath of full value under tribal
usage would be the oath of a man with a full kindred, _i.e._ with twelve
hyndens, each of full kindred, behind him. Only with a full kindred to
support him was his protection complete, because without it he could
not secure a full oath of twelve sufficiently influential and powerful
oath-helpers. If he could claim from his kindred such an oath, then he
may well have been considered properly a twelve-hyndeman, because such an
oath meant practically that he had the support and protection of twelve
hyndens of kinsmen in case of need.

This might at first sight seem an unnecessarily large requirement if
the _oath_ were regarded only as clearing a man from the charge of
man-slaying. But going back to tribal usage it seems no longer too large
when the alternative is considered. The alternative was the ordeal and,
on failure of the test of innocence, the feud or the payment of a wergeld
of, as we have seen, normally one hundred head of cattle. In either case
the slayer was powerless if alone. He was powerful only in having a
full kindred behind him bound by ties of kinship and tribal usage first
to swear for him instead of his being put to the ordeal, and secondly
to fight for him or to assist him in finding the hundred head of cattle
required to buy off the feud, according to the proverb ‘Buy off the spear
or bear it.’ In either case the completeness of his kindred was the
measure of the power of protection behind him.

[Sidenote: The oath of the ceorl worth only one sixth of that of the
twelve-hyndeman and thus only twy-hynde.]

The twy-hyndeman considered as the leysing or freedman would not be in
this strong position. His social status, resulting from his imperfect
kindred, must be a low one. If he slew a twelve-hyndeman, from the
point of view of the feud he would be helpless. The kindred of the
twelve-hyndeman slain by him could not be satisfied merely by the
slaughter of an inferior. Tribal custom of the Continental Saxons allowed
vengeance for homicide by a thrall to be taken upon seven thralls. Under
Mercian usage, as we have seen, it had been settled that the oath of the
ceorl was to be taken as worth one sixth of that of the twelve-hyndeman,
because the life of six ceorls was held to be equivalent in the matter
of vengeance to that of one twelve-hyndeman. And thus it may be that,
in the case of man-slaying, his oath and that of his oath-helpers,
all of inferior value, came, under Anglo-Saxon custom, to be reckoned
in comparison with that of the man of full kindred as worth only ‘two
hyndens’ as against his twelve.

In the other passage in which the word ‘hynden’ occurs it has not so
distinctly the meaning of ‘oath-helpers.’ It is not used in relation to
homicide or wergelds, but still its use and its meaning are instructive.

[Sidenote: The hynden-men of the city frith-gegildas.]

The use of the word in the ‘Judicia Civitatis Lundoniæ’[259] is in
connection with the organisation of ‘frith-gegildas’ for the prevention
and punishment of theft. These ‘frith-gegildas’ were groups or ‘hyndens’
with a common purse. And contributions were to be made for the common
benefit. In the eighth clause it was enacted that the hynden-men should
be collected every month, each twelve to a common meal. ‘And if it should
then happen that any kin be so strong and so great within land or without
land whether xii-hynde or twy-hynde that they refuse us our right and
stand up in defence of a thief, that we all of us ride thereto with the
reeve within whose “manung” it may be.’

These hyndens were not directly groups of kinsmen and oath-helpers,
but they were artificial groups formed and bound by a pledge for
mutual protection, and the use of the word ‘hynden’ in this sense is
significant. There were hyndens of oath-helpers under tribal custom, and
now in the city hyndens of frith-gegildas were formed for mutual defence
against powerful kindreds outside their city who were in the habit of
protecting thieves from justice.

This was the way apparently that a substitute was found in the towns for
the absent kindreds. And as time went on these artificial hyndens of
_gegildas_ or _congildones_ no doubt in some measure took the place of
the hyndens of kinsmen in cases of homicide as well as in cases of theft.

[Sidenote: Wealth and fullness of kindred often concurrent.]

Naturally in the course of time the possession of property and social
status would gradually take the place of the completeness of kindred, and
the two elements in status would easily be associated together in common
estimation. The value of a man’s oath would depend more and more on the
number of hides of land he was reckoned to possess, or for which he was
responsible to the ‘King’s utware.’

If we may follow Schmid’s translation of ‘utware’ as ‘Heerbann’ and
picture to ourselves the ceorl who had risen to the social position of a
man with a kindred and having five hides to the King’s gafol, with his
coat of mail and helmet and over-gilded sword coming up at the call of
the King to the fyrd with so many followers, whether kinsmen or tenants,
from the five hides under his charge and so becoming ‘gesithcund’ in
regard to the King’s service, then there would be force in the further
clause which declares that, although he had acquired a kindred and a coat
of mail and helmet and over-gilded sword, yet _if he have not that land,
he is still but a ceorl_.

The power and strength and status of a person would still depend upon the
combination of the two elements, and both would have to be reckoned with.
A passage has already been quoted in which the possibility is admitted of
a kindred becoming so powerful--_magna et fortis_--as to defy the King’s
law and defend the thief.[260] There is another passage relating to
breaches of the peace in Kent in which the two sources of this power of
defiance are mentioned together. The dangerous person may either be _so
rich_ or be of _so great a kindred_ that he could not be punished--‘adeo
dives vel tantæ parentelæ ut castigari non possit.’[261]


VI. THE GESITHCUND AND CEORLISC CLASSES IN THEIR CONNECTION WITH LAND.

Pursuing the question of division of classes mentioned in the Dooms of
Ine we turn now to the consideration of the most prominent distinction
which runs through the clauses of the Dooms, viz. that of _gesithcund_
and _ceorlisc_.

Roughly speaking, the two distinctions may have been gradually coming
more and more to mean much the same thing. As a rule no doubt in King
Ine’s time ceorlisc men were twy-hynde and gesithcund men twelve-hynde.

[Sidenote: The unit of 10 hides of land.]

The same class which, regarded from the point of view of the wergeld,
possessed completeness of kindred and the twelve-hynde oath, when looked
at from another point of view was gesithcund, _i.e._ more or less
directly in the service of the King and belonging to the official and
landed class. So that the value of the oath of both twelve-hynde and
gesithcund men may have become easily associated with a territorial unit
of ten hides of land.

Now, the fact of the connection of the value of the oath with ten hides
of land is pretty good proof that for practical purposes and in common
usage the holding of ten hides was looked upon as in some way or other
a typical unit of holding of the gesithcund or landed class. There is
nothing new in this suggestion, but its lack of novelty does not detract
from its value. And an examination from a tribal point of view of the
isolated passages in the Dooms of Ine relating to this typical holding of
ten hides may possibly throw further and useful light upon the position
of the gesithcund class.

While we speak of the gesithcund class as almost equivalent to the
landed class it is obvious that it would be wrong to consider every
gesithcundman as a landowner. Attention has already been called to the
following clause:

    (51) If a gesithcundman owning land neglect the fyrd, let him
    pay 120_s._ and forfeit his land. One not owning land 60_s._, a
    _ceorlisc_ man 30_s._ as fyrd-wite.

The gesithcundman _not_ possessing land may either be one who has
forfeited his land or a cadet of the class not having yet attained to the
position of landholding and yet being gesithcund by birth.

Nor would it do to let modern notions of landownership intrude themselves
so far into the question as to make us regard the gesithcund and landed
class as a class of land-_owners_ in the modern sense. If the typical
holding of ten hides be that of the gesithcundman, we may have to regard
him rather as a gesith of the King put into possession of the ten hides
by way of stewardship than as anything like the absolute owner of them.

[Sidenote: Ten hides the unit for food rents to the chieftain or King.]

The typical holding of ten hides may perhaps be usefully regarded, from a
fiscal point of view, as a unit for purposes of revenue, at a time when
that revenue under tribal custom consisted chiefly of food rents paid in
kind for the King’s or the chieftain’s use.

Clause 70 of the Dooms of Ine fixes in detail the food rent of ‘ten
hides’ ‘to fostre’ or ‘on feorm.’

If the unit of ten hides were not the customary unit for these food rents
on the Royal domains why should the details of the food rent of ten hides
have been made the subject of an isolated clause like this?

[Sidenote: Land grants of 10 hides.]

Again, if we turn to the grants made by King Ine to the monasteries, they
become intelligible if the system of management of the Royal domains in
units and multiples of ten hides may be understood to underlie them. When
Ine grants to Aldhelm, then Abbot of Malmesbury, ‘45 cassati’ in the
county of Wilts, the grant is found to consist of groups of ‘manentes’
in four different places. And the groups consist of 5, 20, 10, and
10.[262] When Ine makes a grant to Abbot Bernald of land in Somersetshire
it consists of three groups of 20, 20, and 20 _cassati_ or _manentes_
from three different estates.[263] And when he makes a similar grant to
Glastonbury it consists of 10, 10, 20, 20 hides and one hide in five
different places in Somersetshire.[264]

So also when Bede mentions the donations by King Oswy to the Abbess Hilda
of 12 _possessiuncula terrarum_ he adds that six were in the province
of Deira and six in Bernicia and that each of them consisted of 10
_familiæ_, so that in all there were 120.[265]

Now it would seem that as ealdormen were set over shires so gesithcund
men may have been set over smaller units of 10 hides or multiples of 10
hides, holding them as lænland, not only for services rendered, but also
with some kind of subordinate official or even judicial functions.

[Sidenote: Official position of the gesithcundman.]

Schmid long ago pointed out that the translator of Bede in six passages
translated the Latin _comes_ by ‘gesith’ or ‘gesithcundman.’[266] This
seems to imply that his position was in some sense an official one,
subordinate indeed to the ealdorman’s, as we may also learn from the
translator of Bede. For while he translates the ‘_villa comitis_’ of
Bede as the ‘_gesith’s hus_’ he translates the ‘_villa regis_’ as the
residence of the king’s ealdor (‘botl cyninges ealdor’).[267]

We found in s. 45 of King Ine’s Laws above quoted that the
gesithcundman’s burg-bryce was thirty-five scillings while the
ealdorman’s was eighty scillings. Still, though the lowest official in
the scale, it was something that he should be named with the King, the
ealdorman, and the King’s thane as having a burg-bryce according to which
he was to make legal denial (ansacan).

The omission from this clause as to burg-bryce of classes below him seems
to mark that while even the ceorlisc man--_i.e._ even the gafol-gelda
or gebur--was responsible for the peace within his ‘flet’ and received
a fight-wite when it was broken by fighting in it, the gesithcundman
belonged to the class with some sort of extra jurisdiction beyond that
which attached to every man whose homestead was by long tribal custom a
sacred precinct.

[Sidenote: His judicial and magisterial duties.]

And there is a clause in the Laws of Ine which seems to refer to the
something like judicial duties of the gesithcundman, for it shows that
neglect of them causing a suit which he ought to have settled to be
carried to a higher court--before the ealdorman or the King--deprived
him of his right to share in the ‘wite-ræden,’ whatever they were,
appertaining to the suit.

    Gif gesiðcund mon þingað wið cyning oþþe wið kyninges
    ealdormannan for his inhiwan oþþe wið his hlaford for þeowe oþþe
    for frige nah he þær nane witerædenne se gesið forþon he him
    nolde ær yfles gestieran æt ham.

    (50) If a gesithcundman has a suit with the King or with the
    King’s ealdorman for his household or with his lord for bond or
    for free; he (the gesith) shall not there have any ‘witeræden’
    because he would not correct him before of his evil deeds at home.

That he had special duties to discharge in connection with the ‘fyrd’
was shown not only by one of the qualifications of the gesithcund status
being the possession of a coat of mail, helmet, and over-gilded sword,
but also by the fyrd-wite of 120 scillings and the loss of his land, if
he neglected the fyrd.

[Sidenote: His duty to secure the King’s gafol from his land.]

That he was put into his landed position under conditions to secure the
management of the land for the provision of the King’s gafol is shown by
the following clauses, which in regard to one important particular at
least point out what was expected of him and further suggest that there
was reason to fear that sometimes he might be inclined to desert his post
without having performed the conditions upon which his land was held.

    _Be gesiðcundes monnes fære._

    _If a gesithcund leaves [the land]._

    Gif gesiðcund man fare þonne mot he habban his gerefan mid him ⁊
    his smið ⁊ his cild-festran.

    (63) If a gesithcundman leaves, then may he have with him his
    reeve [?] and smith and his foster-nurse.

    Seþe hæfð xx hida se sceal tæcnan xii hida gesettes landes
    þonne he faran wille.

    (64) He who has 20 hides, he shall show 12 hides of _geset land_
    if he want to leave.

    Seþe hæfð x hida se sceal tæcnan vi hida gesettes landes.

    (65) He who has 10 hides shall show 6 hides of _geset land_.

    Seþe hæbbe þreo hida tæcne oðres healfes.

    (66) If he have three hides let him show one and a half.

[Sidenote: He must settle tenants on the land.]

These clauses suggest very clearly that the gesithcundman had been
entrusted with the ten hides or twenty hides, or sometimes a smaller
number, under the special obligation to provide the food rent by settling
tenants upon the land.

[Sidenote: Method of settling gafol-geldas and geburs on yardlands.]

Let us pass, then, to what evidence the Dooms of Ine afford as to the
customary method of settling tenants on the land.

The very next sections to those just quoted are as follows:--

    _Be gyrde londes._

    _Of a yardland._

    Gif mon geþingað gyrde landes oþþe mære to ræde-gafole ⁊ geereð,
    gif se hlaford him wile þ land aræran to weorce ⁊ to gafole, ne
    þearf he him onfon gif he him nan botl ne selð. ⁊ þolie þara æcra.

    (67) If a man agrees for a yardland or more to gafol and ploughs
    it, if the lord wants to raise the land _to work and to gafol_,
    he need not take it upon him if he [the lord] does not give him a
    _botl_, and let him give up (?) the acres.

    Gif mon gesiðcundne monnan adrife, fordrife þy _botle, næs þære
    setene_.

    (68) If a man drive off a gesithcundman, let him be driven from
    the _botl_, not the _setene_.

[Sidenote: The yardland was the usual holding of the _gebur_, with a pair
of oxen.]

Working from the known to the unknown, in a former volume we found that
under the open-field system of husbandry the hide at the time of the
Domesday survey and earlier was generally held to contain four virgates
or yardlands, and that so far as arable land was concerned each yardland
was a bundle, so to speak, of about thirty scattered strips or acres.
Tracing the yardland further back, the interesting point was gained from
the tenth-century document known as the ‘Rectitudines &c.,’ that ‘in
some regions’ the custom in allotting a yardland to a tenant called a
‘_gebur_’ was to give him with his yardland to _land-setene_ seven acres
already sown and a _pair of oxen_, and certain other things theoretically
by way of loan, so that on the gebur’s death everything returned to
the lord, though in practice the holding and land-setene were no doubt
continued to his successor on payment of a ‘relief.’ And this system
of settling gafol-geldas and geburs, or whatever such tenants might be
locally called, on yardlands seems to be that alluded to in the Dooms
of Ine. The clauses incidentally referring to gafol-geldas, geburs, and
yardlands thus become intelligible and important in the light of the
later evidence. This I endeavoured to show in a former volume.[268]

[Sidenote: The hide of four yardlands agricultural.]

Now, this system of settling tenants on yardlands by allotting to each a
pair of oxen, so that four of them should be able to combine in forming
the common plough-team of the hide, obviously belongs to a time when
agriculture had become sufficiently important for the unit of occupation
and so of gafol-paying and services to be generally agricultural rather
than pastoral. But while the _hide_ thus seems to have been connected
in the Dooms of Ine mainly with arable farming, it does not follow that
it always had been so everywhere. The word ‘hide’ may have originally
been applied to a holding devoted more to the grazing of cattle than the
growing of corn.

The remarkable document which has been called ‘The Tribal Hidage,’ to the
meaning and date of which Mr. W. J. Corbett[269] has opened our eyes,
shows that forty or fifty years before the date of the Dooms of Ine the
whole of England then subject to the Anglo-Saxons was, as we should say,
rated in hides according to its tribes or mægthes, possibly for the
fiscal purposes of the Bretwaldaship. And it would seem likely that under
the common designation of hides pastoral as well as agricultural units
for food rents must have been included. This seems to be indicated by the
fact that the hides and virgates of the pastoral districts of West Wales
in the Exon Domesday book are many times greater than those of other
parts of England, and vary very much in area.

[Sidenote: In pastoral districts co-aration of the waste.]

In the pastoral or grazing districts recently conquered from West Wales
early tribal usage would be very likely to survive. And there may well
have been some continuity in the methods of tribal agriculture. Judging
from what we know from the Cymric Codes, there might not yet be permanent
division of the fields into strips and virgates but rather co-aration of
such portions of the waste each year as suited the requirements of the
tribesmen.

[Sidenote: The team of 8 oxen said not to be German.]

The open-field system of agriculture was in its main principles and
chief methods common to German and Celtic tribes. But we are told that
the Germans knew nothing of co-operative ploughing and the team of
eight oxen on which the agricultural hidage of England was so clearly
based. For the team of eight oxen we must go to the Cymric Codes and the
practice in the Isle of Man and Scotland. It was common to these Celtic
regions, even to its details--the yoke of four oxen abreast and the
driver walking backwards in front of the team.[270] In such a matter as
the method of ploughing there may well have been continuity.

We seem to see in the Laws of Ine the process going on of transition from
the tribal form of the open-field system--the co-aration of the waste--to
the more fixed forms of settled and permanent agriculture.

[Sidenote: The allotment of stock and homestead by the lord to the gebur
was the basis of the tenancy.]

Thus, without pressing analogies too far, there may be a root of tribal
custom discernible even in the system of settling geburs on yardlands.
Something very much like it was followed on the Continent under Roman
usage. But the case of the veteran to whom a pair of oxen with seed of
two kinds was given as his outfit only partly resembled the case of the
gebur. In the case of the gebur the outfit of oxen remained in theory the
property of the lord, and returned to him on the death of the tenant.
This was the essential point which created the semi-servile tenancy.
With the homestead went the ‘setene’ or outfit and the corresponding
obligation not only of gafol but also of week-work, and out of the
peculiar relation so established may have grown up in West Wales, as
in Wales itself and Ireland, very easily the doctrine that after its
continuance for four generations the tenant became _adscriptus glebæ_.

The allotment of stock by the Irish chieftain formed, as we have seen, in
a cattle-breeding rather than an agricultural community the traditional
tie between himself and his tenants, whether tribesmen or strangers. The
Cymric chieftain of a kindred followed very nearly the same traditional
practice when he gave to the young tribesman on his attaining the age of
fourteen his _da_ (or allotment of cattle) for his maintenance, thereby
establishing the relation of ‘man and kin’ between him and the chief.

The same tribal principles were, moreover, applied to strangers both in
Ireland and Wales. The Irish ‘fuidhir’ thus settled on the chieftain’s
land became, as we have seen, after four generations _adscriptus glebæ_,
and so did the _Aillt_ or _Alltud_ settled on the Cymric chieftain’s
land. And the same number of generations attached the _nativus_ to the
land under early Scotch law.

Now, if under tribal usage this was so, it need not be surprising that
in the newly conquered districts of West Wales or more generally in
Wessex at the time of King Ine, when the extension of agriculture was an
immediate necessity, something like the same traditional system should
continue or come again naturally into use, producing something like the
same kind of dependence of one class upon the other.

[Sidenote: This system of settlement very general.]

It is necessary to point out that this method of settling tenants on
yardlands with an outfit of a pair of oxen &c. was more or less general,
because doubts have been recently thrown upon it. Its prevalence as a
custom does not rest entirely on the evidence of the ‘Rectitudines’ but
on several incidental mentions of it in various and distant quarters.

[Sidenote: Kent.]

For instance, in the will of a reeve named Abba of Kent (about A.D.
833)[271] is the gift of a ‘half swulung’--_i.e._ what elsewhere would
have been described as a half hide--and with that land were to go four
oxen, two cows, and fifty sheep, that is two oxen and one cow and
twenty-five sheep to each _gioc_ or yardland.

[Sidenote: Glastonbury.]

And again, the Inquisition of Glastonbury (A.D. 1189)[272] describes
the holder of a yardland almost in the same terms as those used in the
‘Rectitudines’ in the description of the _gebur_. He is said to hold a
yardland for 32_d._ (probably 1_d._ per acre), and every Monday he must
plough a half-acre and harrow it, and he works every day in the week but
on Sunday. He has from his lord one heifer (_averum_) and two oxen and
one cow and seven acres of corn sown and three acres of oats (to start
with)--ten acres in all sown--and six sheep and one ram. King Ine made
grants of land, as we have seen, to Glastonbury, and it is interesting
to find the custom of allowing two oxen, one cow, and six sheep to the
yardland as described in the ‘Rectitudines’ still going on in West Wales
five hundred years after Ine’s time on the estates of the Abbey.

[Sidenote: Winchester.]

Take again the charter MLXXIX. mentioned by Kemble (i. p. 216). This
charter shows that the Bishop of Winchester (A.D. 902) had leased fifteen
hides of land to a relative of the Bishop, requiring that he must settle
there (_inberthan_)[273] men who would be fixed (_hamettan_) to the
place. He himself had ‘hamet’ Lufe and her three bairns, and Luhan and
his six bairns, and these must remain on the land whoever might hold it.
There were also three _witetheows_ _bur_bærde and three more _theow_bærde
belonging to the Bishop, with their descendants (_and hire team_). At
this date the settling of new tenants (may we not say?) some of them as
geburs and some as theows was still going on in Wessex A.D. 902.

It is quite true that the holders of these yardlands are not everywhere
always described as _geburs_. But we are dealing with the _thing_, not
the name. The word _gebur_, however, was of much wider use than merely in
one or two localities.

[Sidenote: Tyddenham.]

It is not only in the ‘Rectitudines’ that the gebur and his services are
mentioned. On the Tyddenham Manor of King Edwy on the ‘geset-land’ there
were ‘geburs’ with yardlands (gyrdagafollandes)--as mentioned in the
former volume (p. 150). And other examples may be quoted.

[Sidenote: Shaftesbury. Hatfield.]

In the will of Wynfled[274] there is mention of lands at Shaftesbury
and ‘the geburs that on those gafollands sit’ (_þara gebura di on þam
gafollandes sittað_). And as incidental evidence that the geburs became
in course of time _adscripti glebæ_, it is worth while to remember that
early in the eleventh century the monks of Ely in connection with their
Manor of Hatfield kept record of the children of the geburs on their
estate who had married with others of neighbouring manors, so that
they might not lose sight of them and their rights over them. And the
importance with which their rights were regarded is emphasised by the
fact that the record was kept upon the back of an ancient copy of the
Gospels belonging presumably to the altar of St. Etheldreda.[275]

Now, if such in part was the relation between the gesithcundman and the
tenants of the yardlands of his ‘geset-land’ arising from the allotment
or loan of stock, may not something of the same kind lie at the root of
the relation between the gesithcundman himself and the King? Lord as he
may have been over his ceorlisc gafol-geldas, was not the gesithcundman
himself a servant of the King looking after the King’s gafol, a kind of
middleman, tied to his post with the ealdorman above him in the hierarchy
of Royal service, liable to lose his land if he neglected his duty?

[Sidenote: How far the gebur was _adscriptus glebæ_.]

It is an interesting question how far the ceorlisc class were _adscripti
glebæ_ under the Laws of Ine, but when we try to find this out we
discover that both classes seem to be under some kind of restraint as to
‘going away’ (_fære_). If a gesithcundman ‘fare’ we have seen under what
restrictions it must be. There is another clause which deals with the
case of persons who shall ‘fare’ without leave from their lords.

    Gif hwa fare unaliefed fram his hlaforde oþþe on oðre scire hine
    bestele ⁊ hine mon geahsige fare þær he ær wæs ⁊ geselle his
    hlaforde lx scill.

    (s. 39) If any one go from his lord without leave or steal
    himself away into another shire and he be discovered, let him go
    where he was before and pay to his lord 60 scillings.

Judged in the light of later laws to the same or nearly similar effect,
this clause must probably be regarded rather as early evidence of the
relation between lord and man established generally for the maintenance
of the public peace, than as bearing directly upon the question of the
attachment of the smaller class of tenants to the soil.[276] And yet if
the relation of the ordinary freeman to, let us say, the ealdorman of
the shire was such that he might not move into another shire without
leave, and until it was ascertained whether his action was _bona fide_,
or perhaps with the object to escape from debt or vengeance for a wrong
committed, the restriction would be likely to be still stronger when
a tenant was under fixed obligations to his lord, or had, by taking a
yardland and homestead, settled on his lord’s land and accepted stock
under conditions of gafol and week-work regulated by general usage.

The idea of freedom as a kind of masterful independence of the individual
was not one inherited from tribal modes of thought, nor likely to be
fostered by the circumstances of the times which followed upon the
Anglo-Saxon conquest of Britain. When this fact is fully recognised, the
gulf between the gesithcund and ceorlisc classes does not seem so deep,
after all, as it would be if, instead of approaching the question from a
tribal point of view, we were looking for allodial landowners on the one
hand and expecting the ceorl to be a member of a village community of
independent peasant proprietors on the other hand.

[Sidenote: The king’s food rents or gafol how paid.]

But we are not doing this, and, returning to the gesithcundman, perhaps
we have after all taken for granted quite enough that the general
environment in Wessex was agricultural rather than pastoral. Even as
regards King Ine himself, there may have been a good deal of the tribal
chieftain still left in his relations to his gesithcund followers and
officials. We have spoken of his tribal food rents; but how did he gather
them?

[Sidenote: The _firma unius noctis_.]

No doubt the King’s gafol may partly have been paid in money. But so far
as it was paid in kind it must have been carried by his tenants to his
Winchester palace, or one of his other manors, according to the system
prevalent at the time, followed for centuries after in West Wales, viz.
the system of the ‘night’s entertainment’ (_firma unius noctis_)--a
system followed by tribal chieftains and their Royal successors in
Scandinavia as well as in Britain.

When the Domesday survey was made of what was once West Wales there was
found still existing, especially in Dorsetshire, the survival of a very
practical arrangement of Royal food rents which may have been in use in
King Ine’s time and date back possibly before the West Saxon conquests.

Some portions of the ‘terra Regis’ scattered about the county of Dorset
are grouped in the survey so that each group might supply the _firma
unius noctis_, the money equivalent of which is stated to be 104_l._,
_i.e._ 2_l._ per night’s entertainment for one night each week in the
year. This mode of providing the _firma unius noctis_ is illustrated by
the legend which represents King Ine himself and his queen as moving from
manor to manor for each night’s entertainment, their moveable palace of
poles and curtains being carried before them from place to place upon
sumpter mules.

Now, if we might regard the gesithcundman as one of a class to whom ten
hides or twenty hides had been allotted by King Ine on a system providing
in this practical way _inter alia_ for the night’s entertainments, it
would be natural that the food rent of the unit of ten hides should be
fixed. And further, it would be natural that if the gesithcundman should
wish to throw up his post and desert the land entrusted to his management
he should be restricted, as we have seen, by conditions intended to
secure that the provision for the King’s entertainment or gafol in lieu
of it should not materially suffer.

[Sidenote: The gesithcundman sometimes evicted.]

We have seen that as the ealdorman was to lose his ‘shire’ if he let go a
thief, so the gesithcundman was to pay a fyrdwite, and to lose his _land_
if he neglected the _fyrd_. It was possible, then, that he might have
to be evicted. And a clause in the Dooms of Ine has already been quoted
which seems to refer to the eviction of a gesithcundman.

    Be gesiðcundes monnes dræfe of londe.

    (68) If a gesithcundman be driven off land.

    Gif mon gesiðcundne monnan adrife, fordrife þy botle næs þære
    setene.

    If one drive off a gesithcundman, let him be driven forth from
    the homestead (_botl_), not the _setene_.

If he was evicted he was to be driven from the _botl_ or homestead, not
the _setene_. What can the _setene_ have been?

[Sidenote: Were the stock and crops always his own?]

The land granted or intrusted to the gesithcundman for the performance of
corresponding duties is not likely to have been mere waste. Part of it
might surely already be ‘geset land,’ let to tenants of yardlands. On the
rest of it still held in demesne there would probably be some herds of
cattle. In these early days the cattle and corn on the land were far more
valuable than the mere land itself. If, therefore, a fixed food rent was
payable to the King, may it not be inferred that sometimes the typical
holding of ten hides included the stock let with it, just as, according
to the ‘Rectitudines,’ the yardland did? Following strictly the analogy,
the original stock on the land and in the hands of the tenants would be
the ‘setene’ of the gesithcundman, theoretically, like the land itself,
belonging, not to him, but to his lord? It might have been sometimes so.
But at the same time there might be other cases in which the possession
of cattle may have led to the tenure. The ceorl or the wealh who had
risen to having five hides may have brought the cattle or setene with
him. And to evict him from his own cattle and crops as well as from the
_botl_ might be unjust.

The text as it stands seems to mean that the gesithcundman is not to
be evicted _from_ the _setene_, and the clause seems to be intended to
protect his rights and to prevent his being evicted from his own stock
and crops on the land. The clause is not clear, but it adds to the
sense that in the case of the gesithcundman we are not dealing with a
landowner who can do what he likes with his own, any more than in the
case of the ceorlisc gafol-geldas we are dealing with a class of peasant
proprietors.

[Sidenote: Position of the two classes in Ine’s time.]

Difficult as it may be to come to a clear understanding of some of these
isolated passages in the Dooms of Ine, they may at least have saved us
from the pitfall of a fatal anachronism. Their difficulties, forcing us
to think, may in some degree have helped us to realise the point of view
from which the two classes--gesithcund and ceorlisc--were regarded in
early Wessex legislation.

[Sidenote: The gesithcund class the landed class. The ceorlisc class the
tenant class paying gafol to the landed class.]

Throughout Wessex, speaking generally, they seem to have been regarded
as the two prominent classes in practical agricultural life. The general
facts of everyday observation marked off the gesithcundman as belonging
to the ruling class, holding land direct from the King as the King’s
gesith, while the ceorlisc man, speaking generally, in his relation to
land was the gafol-gelda or gebur sometimes probably holding his yardland
on the King’s demesne, but mostly perhaps and more and more often as the
tenant of the gesithcundman. This, it would seem, had become so general
that in King Alfred’s day and perhaps even in King Ine’s, ignoring the
exceptional classes between the gesithcund and the other class, there was
no absurdity in King Alfred’s claiming that equally dear with the Danish
lysing the ‘ceorl who sits on gafol land’ should have a twy-hynde wergeld.

The division into gesithcund and ceorlisc classes was doubtless a
somewhat rough and wide generalisation. There were, we know, men without
land who belonged to the gesithcund class, and ceorls who were not
tenants of yardlands. And even among the tenants of yardlands some paid
gafol only and others both gafol and week-work. But for our purpose the
fact to be noted is that the generalisation was sufficiently near the
truth for it to be made.

[Sidenote: The ceorlisc class would include newly made freedmen.]

We must not infer that these two classes included strictly the whole
population. Judging from Continental evidence, Wessex must have been very
exceptional indeed if there were not everywhere numerous _theows_ or
thralls. From this class Anglo-Saxon wills and other documents show that
there was a constant stream of freedmen or theows who by emancipation
were allowed to creep up into the ceorlisc class, partly as the result of
Christian impulse, and partly probably from the lack of tenants to occupy
the yardlands left vacant by the desolation caused by constant wars.

Thus while, broadly speaking, the gesithcund and the ceorlisc classes
may have corresponded to the twelve-hynde and twy-hynde classes, they
were not absolutely identical. The two lines of distinction had not
the same origin and did not run absolutely parallel. But they may well
have worked in the same direction. The original distinction founded
upon the possession or absence of the perfect kindred and ‘hyndens
of oath-helpers’ was rooted in tribal instincts and never wholly
extinguished throughout Anglo-Saxon history. The gesithcund class, most
perfect in their kindred and nearest in their relation to the King,
influenced perhaps by traditions of Roman land management, naturally
grew up into a twelve-hynde and landed class, while the ceorlisc class,
recruited from outside and from below, just as naturally became their
tenants.

[Sidenote: The gulf between the two classes existed in King Alfred’s
time.]

Thus in England, as elsewhere, we may easily believe that the gulf
between classes resulting from tribal instincts and confirmed by
difference in wergelds was hardened and widened by the conditions of
landholding in the conquered country, which tended to raise the one class
more and more into manorial lords and depress the other into more or
less servile tenants. The Compact between Alfred and Guthrum affords the
strongest evidence that already in King Alfred’s time the process was far
enough advanced for a pretty hard line to be drawn between them.


VII. COMPARISON OF WESSEX AND MERCIAN WERGELDS WITH THOSE OF CONTINENTAL
TRIBES.

Before passing from the Wessex to the Kentish laws it may be well to mark
the position to which the evidence hitherto examined has brought us with
regard to the amount of the wergelds.

[Sidenote: Continental wergelds of 200 and 160 gold solidi for the full
freeman.]

We have had again and again to come back to the question of the status of
the twelve-hynde and twy-hynde classes as shown by their wergelds. By the
Compact between King Alfred and Guthrum the English wergelds were brought
into line with Norse and other Continental wergelds. The statement of the
higher wergeld in gold made possible a comparison of the Anglo-Saxon with
Continental wergelds.

The result of the inquiry into the Continental wergelds of the
full freeman was that they seemed to fall very distinctly into two
classes--the Frankish and Norse wergeld of 200 gold solidi, on the
one hand, and the Frisian, Saxon, Alamannic, Bavarian, and possibly
Burgundian wergeld of 160 gold solidi on the other hand.

The ratio between these two wergelds is as 5:4.

Now, this is exactly the ratio between the two twelve-hynde wergelds of
the Anglo-Saxon laws, _i.e._ of Wessex and of Mercia. Both were of 1200
scillings, but the Wessex scilling was of five pence and the Mercian of
four pence.

[Sidenote: The Wessex and Mercian wergelds ancient.]

Finding twelve-hynde and twy-hynde wergelds in the Laws of Ine, we seem
to be bound to regard the distinctions between the two classes as going
back to a time two centuries at least before the inroads of the Northmen.

The position of the Dooms of Ine as they have come down to us annexed to
the Laws of King Alfred might possibly have raised a doubt as to whether
the incidental mention of the wergelds might not have been inserted in
the text by the scribes of King Alfred. But if the Mercian wergelds were
of ancient tradition, independently of the Wessex evidence, the statement
of the Wessex wergelds in the Dooms of Ine need not be doubted. At the
same time, the amount of the Wessex wergeld is confirmed by the wergeld
of the secular thane in the Northumbrian statement, for 2000 thrymsas are
equal to 6000 pence, and thus the wergeld of the thane accords with the
Wessex twelve-hyndeman’s wergeld. And as this statement seems to have
been rescued from times anterior to the Northmen’s invasion, it is so far
independent evidence. In the same document the ceorl’s wergeld of 200
Mercian scillings is also mentioned.

The concurrence of independent traditions thus seems to trace back
the difference between the Wessex and Mercian wergelds as well as the
difference between the twelve-hynde and twy-hynde classes in both cases
into the early Anglo-Saxon period. And if we may date them back to the
time of King Ine--two centuries before the invasion of the Northmen--they
may well go back earlier still. For wergelds which have already become
traditional in the seventh century may not improbably have been brought
by the invading tribes with them into Britain in the fifth and sixth
centuries. The fact that the Mercian and Wessex wergelds differed makes
it unlikely that the traditional wergelds were first adopted in Britain
or acquired from the Romano-British population. That they differed
exactly in the same ratio as the two classes of Continental wergelds
differed is a fact which points still more strongly to a Continental
origin.

[Sidenote: At 1:10 Wessex wergeld of 6000 pence = 200 gold solidi, and
the Mercian of 4800 pence = 160 gold solidi.]

Moreover, the Wessex and Northumbrian wergeld of 1200 scillings of five
pence--_i.e._ 6000 pence or sceatts at a ratio of 1:10--was equal to 600
tremisses or 200 gold solidi.

The Mercian wergeld of 1200 scillings of four pence--_i.e._ 4800 pence or
sceatts--at the same ratio was equal to 480 tremisses or 160 gold solidi.

That the ratio of 1:10 was not an unlikely one is shown by its being the
ratio under the Lex Salica between the forty scripula of silver and the
gold solidus before the Merovingian reduction of the standard weight of
the latter and the issue of silver tremisses.[277] It was also the ratio
at which twelve Roman argentei or drachmæ of silver were apparently
reckoned as equal to the Merovingian gold solidus.

The correspondence at this ratio of the Wessex twelve-hynde wergeld with
the Frankish wergeld of 200 gold solidi, and of the Mercian twelve-hynde
wergeld with the other Continental wergelds of 160 gold solidi, is
sufficiently striking to be taken into account in any speculation as to
the respective origins of the West Saxon and Mercian invading tribes. But
that is not the object of this essay. It is enough to have noted a fact
which may or may not turn out to be of some historical significance.

The value of the wergelds to this inquiry consists in the light they
throw upon the solidarity of tribal society and the position in social
rank of the various classes of Anglo-Saxon society. But we have yet to
examine the laws of the Kentish kings, and it will be best to suspend any
further judgment on these points until this remaining part of our task
has been done.




[Illustration]




CHAPTER XIV.

_THE LAWS OF THE KENTISH KINGS._


I. DISTINCTION FROM ANGLO-SAXON LAWS, A.D. 596-696.

The laws of the Kentish kings, if they had been on all fours with the
other Anglo-Saxon laws, would have taken back the general evidence for
Anglo-Saxon custom another hundred years earlier than the Laws of Ine,
and nearer the time of the conquest of Britain. As it is, however, they
have to be treated as in part exceptional.

[Sidenote: Belgic agriculture.]

It is very probable that for a long period the proximity of Kent to the
Continent had resulted in the approximation of its social and economic
conditions to those of the opposite shore of the Channel. The south-east
corner of Britain was described by Cæsar as having been colonised by
Belgæ and as having been for some time under Belgic rule. The Belgic
tribes were the furthest advanced of Celtic tribes and, according to
Cæsar, had fostered agriculture, while his informants spoke of the
interior of Britain as pastoral.

Under Roman rule the prominence of agriculture was continued. Ammianus
Marcellinus describes large exports of British corn to supply Roman
legions on the Rhine. He speaks of the British _tributarii_ in a way
which suggests that this part of Britain under Roman rule had become
subject to economic arrangements similar to those of the Belgic provinces
of Gaul.

[Sidenote: The sulungs and yokes of Kent.]

The introduction, by invitation, of the Jutes into Kent and their
settlement, in the first instance at all events, under a friendly
agreement of payment of _annonæ_, may have given an exceptional character
to the results of ultimate conquest. The permanent prominence of
agriculture is perhaps shown by the fiscal assessment in ‘sulungs’ and
‘yokes’ instead of hides and virgates.

[Sidenote: Early clerical influences.]

The exceptional conditions of the Kentish district were continued by
its being the earliest to come into close contact with the court of the
Merovingian Franks, and with ecclesiastical influences from Rome. The
mission of St. Augustine resulted in the codification of Kentish custom
into written laws a century earlier than the date of the earliest laws of
Wessex.

The peculiar character of Kentish custom may have been further maintained
by the partial isolation of Kent. The kingdom of the Kentish kings,
though lessened in Ethelbert’s time by the encroachment of Wessex,
had maintained its independence of both the Northumbrian and Mercian
supremacy or Bretwaldorship.

Apart from any original difference in custom between Jutish and other
tribes this isolation naturally produced divergence in some respects from
the customs of the rest of Anglo-Saxon England and may perhaps partly
explain why the Laws of the Kentish Kings came to be included in only one
of the early collections of Anglo-Saxon laws.

Further, when we approach the subject of Kentish wergelds we do so with
the direct warning, already alluded to, of the writer of the so-called
Laws of Henry I., that we shall find them differing greatly from those of
Wessex.

[Sidenote: Wergelds said to differ from those of Wessex and Mercia.]

    This we have said according to our law and custom, but the
    difference of wergeld is great in Kent, _villanorum et baronum_.

Moreover, in after times Kentish custom differed from that of other parts
of England in the matter of succession. The custom of Gavelkind prevailed
in Kent. And among the statutes after the Norman Conquest there is an
undated statement setting forth peculiar customs of Kent in matters where
they differed from those of the rest of the kingdom.

Some of these differences may have been of later origin, but a comparison
of the laws themselves with other Anglo-Saxon laws is conclusive upon the
point that important differences always existed and, what is more, were
recognised as existing.

Although the Kentish laws are not included with other Anglo-Saxon laws in
any manuscript but that of Rochester, yet they were known to King Alfred.
He mentioned them in the proem to his laws as well as the Mercian laws as
among those which he had before him in framing his own. Moreover, we have
seen that at the time of the Danish invasion certain differences between
the Kentish and other laws were known and noted correctly in the fragment
‘Of Grith and of Mund.’

Finally, in its system of monetary reckoning the Kentish kingdom seems to
have been peculiar from the first. And as our knowledge of the Kentish
wergelds is essential to an understanding of the division of classes,
a good deal must depend upon a previous understanding of the currency
in which the amounts of the wergelds are described. Before proceeding
further it is necessary, therefore, to devote a section to a careful
consideration of the subject. The experience already gained will not be
thrown away if it should help us to understand the meaning of the scætts
and scillings of the Kentish laws.


II. THE SCÆTTS AND SCILLINGS OF THE KENTISH LAWS.

All the payments mentioned in the Kentish laws are stated in scætts and
scillings--naturally, by far the larger number of them in the latter.

What were these scætts and scillings? First, what were the scætts?[278]

[Sidenote: The scætts of 28·8 wheat-grains like Merovingian tremissis.]

We have already seen that before the time of Offa the silver coinage
current in England consisted mainly of the silver tremisses of
Merovingian standard, _i.e._ twenty to the Roman ounce, or 28·8
wheat-grains. These are known to numismatists as silver pence of the
_Sceatt_ series.

That these silver coins were those known by the name of sceatts we seem
to have the direct and independent evidence of the following fragment ‘On
Mercian Law,’ already quoted but sufficiently important to be repeated
here.[279]

    Ceorles wergild is on Myrcna lage cc scill.

    The ceorl’s wergeld is in the law of the Mercians 200 scillings.

    Þegnes wergild is syx swa micel, þæt bið twelf hund scill.

    The thane’s wergeld is six times as much, _i.e._ 1200 scillings.

    Þonne bið cynges anfeald wergild six þegna wer be Myrcna laga þæt
    is xxx þusend sceatta, and þæt bið ealles cxx punda.…

    Then is the King’s simple wergeld six thanes’ wergeld by Mercian
    law, _i.e._ 30,000 sceatts, and that is in all 120 pounds.…

Now, as previously observed, the sum of 30,000 sceatts must evidently be
taken as a round sum. The statement that the King’s simple wergeld was
120 pounds or six times the thane’s wergeld of 1,200 Mercian scillings
seems to make this clear, for 7200 Mercian scillings of four sceatts
(28,800 sceatts) would amount exactly to 120 pounds.[280]

[Sidenote: The sceatts minted by Kentish moneyers.]

That the sceatts of this fragment of Mercian law were the same silver
coins as the scætts of the Kentish laws is further confirmed by
numismatic evidence. The evidence of the coins themselves and of the
names of the moneyers impressed on them seems to make it probable
that to a large extent till the time of Egbert, who was intimate with
Charlemagne, and perhaps even till the time of his grandson Ethelbald,
in the words of Mr. Keary, ‘Kent still provided all the currency of
the South.’[281] It would seem, therefore, that practically during the
whole period of the issue of the silver pence of the Sceatt series the
greater part of them were minted by Kentish moneyers. And thus numismatic
evidence applies not only to the coinage of Wessex but also to that of
Mercia.[282]

We can hardly be wrong, then, in thinking that this valuable fragment
of Mercian law in using the word sceatt referred back to ancient custom
before the sceatt had been superseded by the penny, and therefore must be
good evidence that the silver coins called sceatts in Mercia were similar
to those called scætts in Kent. In other words the Kentish _scætt_,
notwithstanding the slight difference in spelling, was almost certainly
the silver _sceatt_ of 28·8 wheat-grains, _i.e._ twenty to the Roman
ounce.

It is quite true that the word _sceatt_ was used in the laws in two
senses, sometimes for ‘money’ or ‘property,’ and sometimes for the
coin.[283] But so also was the _scætt_ of the Kentish laws.[284] And it
may not always be easy to ascertain with certainty which meaning is the
right one.

But the Kentish and Mercian laws were not alone in using the word for the
silver coin. The phrase ‘sceatts and scillings’ was elsewhere used to
denote the typical smaller and larger monetary unit, or perhaps we ought
to say the silver and the gold unit.

In the tenth-century translation of the New Testament the word _denarius_
is translated by ‘pæning;’ for long before this the penny of 32
wheat-grains had superseded the old coinage of the ‘Sceatt series.’ But
in the translation of Ulphilas the word ‘_skatt_’ is used for the silver
_denarius_.[285]

At the same time it is important to observe that the word _scilling_ was
the Gothic word applied to the _gold solidus_ in legal documents of the
sixth century during Gothic rule in Italy.

According to the bilingual records in the archives of the Gothic
church of St. Anastasia at Ravenna payments were made in so many
‘skilligans.’[286] So that probably silver skatts and certainly gold
scillings were familiar to the Goths of Italy.

[Sidenote: Sceatts and scillings.]

Again, sceatts and scillings were evidently the two monetary units
familiar to the mind of Cædmon or whoever was the author of the metrical
translation of Genesis. In c. xiv. 23 Abraham is made to swear that he
would take neither ‘sceat ne scilling’ from the King of Sodom.

Moreover, in the fragment on Oaths[287] in the Anglo-Saxon Laws (Thorpe,
p. 76) the same phrase is used:

    On lifiendes Godes naman. ne ðearf ic N. sceatt ne scylling. ne
    pænig ne pæniges weorð.

    (s. 11) In the name of the living God I owe not to N. _sceatt nor
    scilling_, not penny nor penny’s worth.

Surely in both cases the phrase ‘sceatt ne scilling’ refers to coins or
units of account of two denominations in current use, as in the Kentish
laws.

It is even possible perhaps to find an illustration of the reckoning in
sceatts and scillings in the well-known passage in the ‘Scald’s Tale’
already quoted.

    se me beag forgeaf
    on tham siex hund wæs
    smætes goldes
    gescyred sceatta
    scilling-rime.

    He me a bracelet gave
    on which six hundred was
    of beaten gold
    scored of sceatts
    in scillings reckoned.

If these words may be properly translated literally ‘Of sceatts in
scillings reckoned’[288] and are taken to mean ‘600 sceatts in scillings
reckoned,’ the phrase accords very closely with the method of reckoning
in the Salic laws--‘so many hundred denarii, _i.e._ so many solidi.’

Returning to the sceatts and scillings of the Laws of Ethelbert, the most
obvious suggestion would be that the currency in Kent was similar to that
on the other side of the Channel under the Merovingian princes. The two
courts were so closely connected by Ethelbert’s marriage, and probably by
trade intercourse, that the most likely guess, at first sight, would be
that the Kentish scætts were silver tremisses and the Kentish scillings
gold solidi like those of the Lex Salica.

We have seen that the Merovingian currency was mainly in _gold
tremisses_, and as many of the 100 gold tremisses contained in the
celebrated ‘Crondale find’ are believed by numismatists to have been
coined in Kent, by English moneyers, the currency of gold tremisses in
England is directly confirmed, though the silver currency seems very soon
to have superseded it.[289]

[Sidenote: The scilling of 20 scætts = one ounce of silver.]

At the date of Ethelbert’s Laws (A.D. 596) the Merovingian currency
was still mainly gold--_i.e._ gold tremisses, three of which went to the
gold solidus of the Salic Laws. And if the scilling of Ethelbert, like
the solidus of the Franks, had been a solidus of forty denarii we might
have concluded at once that Ethelbert’s scilling, like the Merovingian
solidus, was a solidus of three gold tremisses, or forty silver sceatts.

But the facts apparently will not allow us to come to this conclusion.

Schmid has shown--I think, conclusively--by inference from certain
passages in Ethelbert’s Laws, that the Kentish scilling was of _twenty_
scætts instead of forty.[290] We therefore must deal with the Kentish
scilling on its own evidence.

Now, twenty sceatts of 28·8 wheat-grains, as we have seen, made the
Roman ounce of 576 wheat-grains. The Kentish scilling was therefore the
equivalent of an ounce of silver. And so in the Kentish laws, so far as
reckoning in silver was concerned, the same method was adopted as that of
the Welsh, who reckoned in _scores_ or _unciæ_ of silver, and that which
became the common Frankish and Norman reckoning of twenty pence to the
ounce and twelve ounces to the pound.

Indeed, when we consider that under common Scandinavian custom gold and
silver were weighed and reckoned in marks, _ores_, and ortugs, it would
seem natural that the Kentish immigrants from the North should have been
already familiar with a reckoning in _ores_ or ounces of silver.

But why did they call the ounce of silver a scilling? We might as well
perhaps ask why the Wessex scilling was five pence and the Mercian
scilling four pence. But the word _scilling_ had, as we have seen, been
used by the Goths in Italy for the gold solidus. And on the Continent
the gold solidus in the sixth and seventh centuries, and indeed till
the time of Charlemagne, was so far the recognised symbol of value that
the wergelds of the Northern tribes, whether they remained in the north
or emigrated southwards, were invariably stated in their laws in gold
solidi. The most natural inference would therefore seem to be that the
Kentish scilling, like that of the Salic law, must have been a gold
solidus equated, however, in account with twenty silver pence or scætts.

[Sidenote: The Kentish scilling probably a solidus of two gold tremisses
like the Saxon solidus.]

Now, at the ratio of 1:10 the ore or ounce of twenty silver scætts would
equal a gold solidus of two gold tremisses instead of three.[291] And
when it is considered that the main Merovingian currency on the other
side of the Channel was of gold tremisses it seems natural that the ounce
of silver should be equated with an even number of gold tremisses.

Nor would there be anything unprecedented or unusual in a gold solidus of
two tremisses instead of three. For we have seen that when Charlemagne
conquered the Frisians and the Saxons, he found that the solidi in
which they had traditionally paid their wergelds were not always,
like the Imperial and the Salic solidi, of three gold tremisses, but
that each district had its own peculiar solidus. The solidus of the
southern division of Frisia was of two and a half gold tremisses. The
solidus of the middle district was the ordinary gold solidus of three
tremisses. The traditional solidus of the district presumably nearest to
the Jutes, _i.e._ on both the Frisian and the Saxon side of the Weser,
was the solidus of two tremisses. The Saxon solidus of two tremisses,
representing the one-year-old bullock, was that in which according to the
Lex Saxonum the Saxon wergelds had been traditionally paid.

We have no distinct mention of a Jutish solidus, but as the Jutes
probably came from a district not far from that of the North Frisians and
Saxons there would be nothing abnormal or surprising in their reckoning
in the same solidus as their neighbours, viz. in the gold solidus of two
tremisses, and in the Kentish immigrants continuing the same practice.
But this as yet is only conjecture.

So far, then, as the facts of the prevalent coinage and currency are
concerned, all that can be said is that the hypothesis that the Kentish
scilling was that of two gold tremisses has a good deal of probability in
its favour. But there is other and more direct evidence of the truth of
the hypothesis.

In the first place, as already stated, in the preface to King Alfred’s
Laws he expressly mentions his knowledge of the laws, not only of Ine and
of Offa, but also of Ethelbert, the inference being that in his own laws
he retained, _inter alia_, some of the enactments of Ethelbert which were
in his own view worth retaining.[292]

[Sidenote: Confirmation by other evidence. The King’s mund-byrd of five
pounds common to Wessex and Kent.]

Now, King Alfred _fixed the king’s mund-byrd at five pounds_ of silver,
_i.e._ 240 Wessex scillings, while he must have known that in the Kentish
law the king’s mund-byrd was fifty Kentish scillings. The difference in
scillings must have struck him, but he probably knew perfectly well what
the Kentish scillings were. For when we compare these two mund-byrds we
find that at a ratio between gold and silver of 1:12 (which, as we have
seen, was the Frankish ratio of Charlemagne’s successors) fifty Kentish
scillings of two gold tremisses did equal exactly five pounds. Fifty
Kentish scillings or 100 Merovingian gold tremisses, at 1:12 were equal
to 1200 silver tremisses or sceatts of the same weight, _i.e._ five
pounds of 240 sceatts; or, in other words, 100 gold tremisses (_nova
moneta_) were equal at the same ratio to five pounds of 240 of King
Alfred’s pence of 32 wheat-grains. The equation was exact.

And further, we have seen that in the time of Cnut the Kentish king’s
mund-byrd was well known and declared to be five pounds according to
Kentish law, although in that law it was stated to be 50 scillings.

The passage has already been quoted from the MS. G of Cnut’s Church law,
s. 3, in which, after stating that ‘the grith-bryce of the chief minster
in cases entitled to “bot” is according to the king’s mund, that is five
pounds by English law,’ the additional information is inserted,[293]

    On cent lande æt þam mund bryce v pund þam cingce.

    In Kent land for the mund-bryce v pounds to the King.

Further in the same MS. G of Cnut’s secular law, s. 63, is the
following:[294]--

    Gif hwa ham socne ge wyrce ge bete ꝥ mid .v. pundan. þam cingce
    on engla lage ⁊ on cent æt ham socne v. þam cingce ⁊ þreo þam
    arce bisceope ⁊ dena lage swa hit ærsteod ⁊ gif hine mon þær
    afylle licge ægilde.

    If anyone commit hamsocn let him make bot for it with v pounds
    to the King by English law, and in Kent from hamsocn v to the
    King and three to the archbishop and by Danish law as it formerly
    stood, and if he there be killed let him lie unpaid for.

It is not very clear what the _ham-socn_ was. In the Latin versions it
is translated by ‘invasio domi.’ And it seems to be the same thing as
the ‘heimsókn’ of the Norse laws.[295] It seems to be a breach of the
peace within the sacred precinct of the ‘heim,’ and the penalty seems to
place it on the same ground as the borh-bryce and mund-byrd of the king
so as to have become in Cnut’s time one of the crimes which in Kent also
involved a penalty of fifty Kentish scillings.[296]

Here, then, the inference again is that fifty Kentish scillings were
equal in Cnut’s time to five pounds of silver.

It is quite true that these two statements of Kentish law are not found
in the other manuscripts of Cnut’s laws, so that in one sense they may be
regarded as interpolations, but in the MS. G they are not insertions made
afterwards. In both passages the words form an integral part of the text,
which throughout is written in a clear and excellent hand.

It is difficult to suggest any reason for the insertion of these two
statements of Kentish law other than the deliberate intention to point
out that the amount of the Kentish king’s mund-byrd of fifty Kentish
scillings was the same as the Wessex mund-byrd of five pounds of silver.

In addition, therefore, to the fact that at a ratio of 1:12 between gold
and silver the two amounts were alike, these passages seem to show that
the penalty of fifty Kentish scillings had become permanently recognised
in Cnut’s time as equal to the English penalty of five pounds of
silver.[297]

If the comparison had been made throughout in silver sceatts, the
equation would not have held good so exactly, for 1000 sceatts would not
have equalled exactly five pounds, _i.e._ 1200 of the same sceatts. The
exact equation seems to have been between fifty Kentish gold scillings of
two tremisses, and five pounds of silver at the current Frankish ratio of
1:12. So that the direct evidence of these passages from Cnut’s laws goes
very far to verify the hypothesis derived from numismatic considerations
that the scilling of the Kentish laws was a gold scilling of two
tremisses, like that of the Continental Saxons and North-East Frisians.

[Sidenote: Scætts cannot have been farthings.]

It is, however, only fair to say that Schmid, while adhering to the view
that the Kentish scilling was of twenty sceatts, has suggested that these
sceatts may have been, not silver tremisses or pence, but _farthings_, so
that the Kentish scilling of twenty farthings might be identical with the
Wessex scilling of 5_d._[298] Konrad von Maurer held the same view.[299]
But if this could be supposed for a moment, the Kentish scætt would then
be only one quarter of the sceatt of the fragment of Mercian law, and
the mund-byrd of King Ethelbert would be only a quarter of that of the
Wessex King, notwithstanding the assertion in MS. G of the Laws of Cnut
that the Kentish mund-byrd was five pounds of silver, like those of other
English laws. With all deference, therefore, to the view of these great
authorities, a careful examination of the evidence seems to lead to the
conclusion that it cannot be maintained. Nor does there appear to be any
reason why the Kentish scilling should be expected to be the same as the
Wessex scilling, as we know that the Wessex scilling of 5_d._ differed
from the Mercian scilling of 4_d._

[Sidenote: Kentish scilling therefore of two gold tremisses or twenty
silver scætts or Roman ounce.]

We adhere, then, to the view that the Kentish scilling was a scilling of
two gold tremisses like the Saxon solidus, and that it was equated with
the ore or Roman ounce of silver, _i.e._ twenty sceatts.

The reader will be able to form his own judgment as to whether
examination of the various clauses of the Kentish Laws and the amounts of
the wergelds and other payments now to be considered will confirm this
conclusion or not. I think it will be found substantially to do so.


III. THE LAWS OF ETHELBERT.

The Laws of Ethelbert begin with the heading: ‘These are the dooms which
King Ethelbert established in the days of Augustine.’

[Sidenote: Evidence of clerical influence.]

This heading probably did not form a part of the original laws, but it
may serve to remind us that ecclesiastical influence must be reckoned
with in their consideration and that some of their clauses may have
been modifications of ancient custom rather than statements of what it
originally was.

The first clause is as follows:--

    Godes feoh ⁊ ciricean .xii. gylde.
    Biscopes feoh .xi. gylde.
    Preostes feoh .ix. gylde.
    Diacones feoh .vi. gylde.
    Cleroces feoh .iii. gylde.
    Cyric-frið .ii. gylde.
    M[æþel] frið .ii. gylde.

    The property of God and of the Church  12 fold
    A bishop’s                             11  ”
    A priest’s                              9  ”
    A deacon’s                              6  ”
    A clerk’s                               3  ”
    Church frith                            2  ”
    [Moot] frith                            2  ”

This clause is read by Thorpe and Schmid and Liebermann as enacting that
thefts were to be paid for on this scale, so many multiples of the value
of the goods stolen.[300]

Clause 2 enacts:--

[Sidenote: Mund-byrd of the King 50 scillings.]

    Gif cyning his leode to him gehateð. ⁊ heom mon þær yfel gedo .ii.
    bote. ⁊ cyninge .l. scillinga.

    If the King call his _leod_ to him and any one there do them
    evil, the bot is twofold and 50 scillings to the King.

Here are two distinct things. The bot is the payment to the person called
to the King. While thus in attendance any injury is to be paid for
twofold. The payment of fifty scillings to the King is the mund-byrd or
payment for breach of his protection or peace.

Clause 3 is as follows:--

    Gif cyning æt mannes ham drincæð ⁊ þær man lyswæs hwæt gedo twi
    bote gebete.

    If the King drink at any one’s ‘ham’ and any one there does
    something wrong, then let him pay twofold bot.

That is, the presence of the King at a subject’s house is the same thing
as the subject being in the King’s protection, and the bot for any wrong
done to the subject, while the King is there, is doubled.

Clause 4 enacts:--

    Gif frigman cyninge stele .ix. gylde forgylde.

    If a freeman steal from the King, let him pay ninefold.

It seems at first sight hardly likely that the Archbishop should be
compensated elevenfold and the King only ninefold, but as this is
repeated in the statement of the Kentish law in the fragment ‘Of Grith
and of Mund’ the text may be taken as correct.

Clause 5 enacts:--

    Gif in cyninges túne man mannan ofslea .l. scill. gebete.

    If a man slay another in the King’s tun, let him make bot with 50
    scillings.

The bot here again is evidently the mund-byrd payable to the King for
breach of his protection, _i.e._ fifty Kentish scillings.

Clause 6 enacts:--

    Gif man frigne mannan ofsleahð cyninge .l. scill to
    drightin-beage.

    If any one slay a freeman, 50 scillings to the King as
    _drihtin-beag_.

Here again the payment is to the King, but in this case, if the word
is to be taken literally, it is not perhaps for breach of his peace,
but for the _killing of his man_. He claims it as his ‘drihtin-beag’ or
lord’s-ring. It is, to use the later Saxon phrase, the King’s manbot or
value to him of his man killed.

[Sidenote: King’s smith and outrider pay a _medume_ wergeld.]

Up to this point the question of wergeld has not been mentioned at all.
But in clause 7 is the following:[301]--

    Gif cyninges ambiht-smið oþþe laad-rinc mannan ofslehð. meduman
    leodgelde forgelde.

    If the King’s _ambiht-smith_ [official-smith] or _laad-rinc_
    [outrider] slay a man, let him pay a _medume leodgeld_.

Liebermann would insert the word ‘man’ after ‘gif’ and so read this
clause as stating the wergeld of the King’s smith and laadrinc-man when
_slain_ to be a ‘medume wergeld’ (mittleres wergeld). But the clause is
complete as it stands without the insertion of ‘man,’ and, read as it
is, means that the smith and the outriders of the King, if they slay a
man, are to pay a ‘medume leodgeld.’ But what does this mean? The word
_medume_ was translated by Wilkins by ‘moderata.’ Thorpe read the phrase
as meaning ‘a _half_ wergeld;’[302] Schmid as a ‘fit and proper’ one; and
Liebermann would take it to refer to the wergeld of a person of middle
rank or position. We must leave the true meaning for the present in doubt.

[Sidenote: Reason why not a full wergeld. Their dangerous work.]

Apart from the amount of the wergeld, if we would understand this
passage we have surely first to consider for what reason these two
royal officials should be singled out from all others and made liable
to pay wergelds. The inference must be that in the performance of
their duties they were peculiarly liable to injure others. The King’s
smith in his smithy forging a weapon, and the outrider forcing a way
for the King through a crowd, might very easily through carelessness
or in the excitement of work cause the death of another. The necessity
apparently had arisen to check their action by making them liable to pay
a wergeld.[303] But the wergeld was not to be the usual one. It was to be
a ‘medume leodgelde.’

For the present the exact meaning may be left open, but whether the
true reading be a half-wergeld or not, the inference seems to be
that a _full_ wergeld was not to be paid. Probably it had come to be
recognised that a person engaged in a specially dangerous trade could
not be held responsible to the same extent as in the case of an ordinary
homicide.[304] These considerations are important, because the ‘medume’
wergeld will again claim notice and every hint is valuable when, as in
the case of these laws, we have only hints to guide us.

In Clause 8, the King’s mund-byrd is declared to be fifty scillings; and
the next two clauses relate to injuries done to the King’s servants.

[Sidenote: Bots for harm done to King’s servants.]

    Gif man wið cyninges mægden-man geligeð .l. scillinga gebete.

    10. If any one lie with a King’s maiden, let him pay a bot of 50
    scillings.

    Gif hio grindende þeowa sio .xxv. scillinga gebete. Sio þridde
    .xii. scillingas.

    11. If she be a grinding slave, let him pay a bot of xxv
    scillings. The third [class] xii scillings.

    Cyninges fed-esl .xx. scillinga forgelde.

    12. Let the King’s _fed-esl_ be paid for with xx scillings.

These bots are evidently payable to the King for injuries done to him by
abuse of his servants of different grades. They were not wergelds.

We have now done with these bots to the King, and the laws turn to
consider injuries done and bots due to the _eorl_.

[Sidenote: Bots due to the eorl.]

    Gif on eorles tune man mannan ofslæhð .xii. scill. gebete.

    13. If a man slay another in an _eorl’s_ tun, let him make bot
    with xii scillings.

    Gif wið eorles birele man geligeð .xii. scill. gebete.

    14. If a man lie with an _eorl’s birele_, let him make bot with
    xii scillings.

And then from the bots due to the eorl the laws pass to those due to the
ceorl. The following clauses show that under the Kentish laws the ceorl
also had a mund-byrd.

[Sidenote: Bots due to the ceorl.]

    Ceorles mund-byrd .vi. scillingas.

    15. A ceorl’s mund-byrd vi scillings.

    Gif wið ceorles birelan man geligeð .vi. scillingum gebete. aet
    þære oðere þeowan .l. scætta. aet þare þriddan .xxx. scætta.

    16. If a man lie with a ceorl’s birele, let him make bot with vi
    scillings; if with the slave of the second class l scætts; if
    with one of the third class xxx scætts.

Thus we get a scale of mund-byrds or penalties due for breach of the
peace or protection of the King, the eorl, and the ceorl:--

[Sidenote: Mund-byrd of King, eorl, and ceorl.]

  King’s mund-byrd     50 scillings
  Eorl’s     ”         12     ”
  Ceorl’s    ”          6     ”

but so far we have learned nothing about the amount of their wergelds.

Clause 17 fixes the bot for inroad into a man’s ‘tun’ at six scillings
for the first person entering, three for the next, and one for the rest.

[Sidenote: Lending a weapon in a brawl.]

Then follows an interesting set of clauses, which I think must be read
together, as all referring to the case of what might happen in a brawl in
which one man lends a weapon to another.

    Gif man mannan wæpnum bebyreþ ðær ceas weorð ⁊ man nænig yfel ne
    gedeþ .vi. scillingum gebete.

    18. If a man furnishes weapons to another _where there is
    strife_, and the man does no harm, let him make bot with vi
    scillings.

    Gif weg reaf sy gedon .vi. scillingum gebete.

    19. If _weg-reaf_ [street robbery] be done, let him make bot with
    vi scillings.

    Gif man þone man ofslæhð .xx. scillingum gebete.

    20. If any one slay _that_ man [_i.e._ to whom he lent the
    weapons], let him [the lender] make bot with xx scillings.

    Gif man mannan ofslæhð medume leod-gild .c. scillinga gebete.

    21. If a man slay another, let him [the lender] make bot with a
    medume leod-geld of c scillings.

    Gif man mannan ofslæhð æt openum græfe .xx. scillinga forgelde
    ⁊ in .xl. nihta ealne leod forgelde.

    22. If a man slay another, let him at the open grave[305] pay xx
    scillings and in 40 nights pay a full[306] leod.

    Gif bana of lande gewiteþ þa magas healfne leod forgelden.

    23. If the slayer depart from the land, let his kindred pay a
    half leod.

These clauses taken together and followed carefully, I think, become
intelligible.

[Sidenote: How treated in Alfred’s and in Ine’s laws.]

A man lends weapons to another who is engaged in a brawl, and the
question arises how far he is to be responsible for what happens in
the brawl. In the case dealt with in these clauses two things are
involved--the lending of the weapons and the joining thereby in the
fray. In the later laws there are provisions for both points. Under King
Alfred’s laws (s. 19) the man who lends his weapon to another who kills
some one therewith has to pay at least one third of the wergeld unless he
can clear himself from evil intention.

Under Ine’s laws (s. 34) a man who joins in a fray in which someone is
killed, even if he can clear himself from the slaying, has to pay as
bot (_gebete_) one fourth of the wergeld of the slain person whether
twy-hynde or ‘dearer born.’ Under Alfred (29 to 31) the actual slayer
has to pay the wergeld, and in addition each of the others in the fray
has to pay as ‘hloð-bote’ 30 scillings for a twy-hynde man, 60 for a
six-hynde, and 120 for a twelve-hynde man.

These later precedents may materially help us in the understanding of the
Kentish clauses.

Clauses 18 and 19 make the lender of the weapon pay a bot of six
scillings though no evil be done or only street robbery occur.

Clause 20 provides for the case in which the man to whom he lent the
weapon was slain, and in this case the bot is raised to twenty scillings.

[Sidenote: The lender pays a _medume_ wergeld for person slain.]

Clause 21 seems to deal with the case of some one else being slain, and
makes the lender liable to pay a bot of a ‘medume leod-gild’ of 100
scillings for mixing in the fray. It would be natural that the bot should
be greater if another was slain than if the man to whom he lent the
weapons had been slain. And if the later precedents are to guide us, the
bot of a ‘medume wergeld’ should not in amount equal the whole wergeld
but only a proportion of the wergeld. If the bot of 100 scillings might
be considered as equal to a _half_-wergeld we should gain a clue to what
the whole wergeld might be. And this would be a tempting inference. But
we are not, it seems, as yet warranted in making it. We must therefore at
present content ourselves with the conclusion that the ‘medume wergeld’
cannot mean a whole wergeld, otherwise the lender of the weapon would pay
as _bot_ as much as the wergeld would be if he had killed the man himself.

Clause 22 makes 20 scillings payable at the open grave and the whole leod
in forty nights. It refers apparently to the actual slayer’s liability
to pay the whole wergeld (_ealne leod_); and finally clause 23 states
that if the slayer depart from the land his kindred shall pay _half_
the wergeld of the slain person. We are not told to whom the bot of the
‘medume wergeld’ of 100 scillings was to be paid, nor whether it was to
be a part of the wergeld or additional to the ‘ealne leod’ paid by the
actual slayer. The later laws, as we have seen, afford precedents for
both alternatives.

[Sidenote: Kindred liable for half the wergeld and slayer for the other
half.]

Another point of interest arises from the last clause. In the absence
of the slayer his kindred had to pay only a half wergeld (_healfne
leod_). Does this justify the inference that in all cases of wergelds the
liability of the kindred was confined to one half? It will be remembered
that in the so-called ‘Canones Wallici’ (_supra_, p. 109), if the slayer
had fled, the _parentes_ of the slayer had fifteen days allowed for their
payment of one half or flight from the country. And only when they had
paid their share could the slayer return and make himself safe by paying
the other half--the ‘medium quod restat.’ It seems not unlikely that in
the Kentish case also ecclesiastical influence had limited the liability
of the kindred to the half-wergeld.

Clauses 25 and 26 are important, and we shall have to recur to them.

[Sidenote: The three grades of læts.]

    Gif man ceorlæs hlaf-ætan ofslæhð .vi. scillingum gebete.

    25. If any one slay a ceorl’s hlafæta, let him make _bot_ with vi
    scillings.

    Gif læt ofslæhð þone selestan .lxxx. scill forgelde. Gif þane
    oðerne ofslæhð .lx. scillingum forgelde. þane þriddan .xl.
    scillingum forgelden.

    26. If [any one] slay a _læt_ of the best class, let him pay lxxx
    scillings; of one of the second, let him pay lx scillings; of the
    third, let him pay xl scillings.

To these three grades of læts we shall have to return when we sum up the
evidence on the division of classes.

[Sidenote: Edor-breach.]

Next follow three clauses upon edor-breach. The first relates to the
breach by a freeman of the enclosure or precinct presumably of a freeman,
the penalty being the same as the ceorl’s _mund_. The second imposes a
threefold bot upon theft from within the precinct. And the third refers
to a freeman’s trespass over the edor or fence.

    Gif friman edor-brecðe gedeð vi scillingum gebete.

    27. If a freeman commit edor-breach, let him make bot with vi
    scillings.

    Gif man inne feoh genimeð se man iii gelde gebete.

    28. If any one take property [? cattle] from within, let him pay
    a threefold bot.

    Gif fri-man edor gegangeð iv scillingum gebete.

    29. If a freeman trespass over a fence, let him make bot with iv
    scillings.

After these clauses about _edor-breach_ is the following:

    Gif man mannan ofslea agene scætte. ⁊ unfacne feo gehwilce gelde.

    30. If a man slay another, let him pay with his own money
    (scætte) and with any sound _feo_ [cattle].

    Gif friman wið fries mannes wif geligeð his wer-gelde abicge ⁊
    oðer wif his agenum scætte begete. ⁊ þæm oðrum æt þam gebrenge.

    31. If a freeman lie with a freeman’s wife, let him pay his
    wergeld, and another wife obtain with his own scætte and bring
    her to the other.

[Sidenote: Bots for injuries. For eye, hand, or foot 50 scillings.]

Then follow chapters relating chiefly to injuries done and wounds
inflicted, and the bots payable to the person injured for the same. It
is not needful to mention more of these than the most important one,
viz. that for the destruction of an eye, hand, or foot. The bots for all
these in most other laws were alike. In Ethelbert’s Laws the bot for
each of the three is fifty scillings, which happens to be the same as the
mund-byrd of the King.

After the clauses for injuries there are several relating to women.

[Sidenote: Injuries to women.]

    Gif fri wif locbore les wæs hwæt gedeþ xxx scll gebete.

    73. If a lock-bearing free wife does wrong, xxx scillings bot.

    Mægþbot sy swa friges mannes.

    74. The maiden-bot is like a freeman’s.

    Mund þare betstan widuwan eorlcundre l scillinga gebete. Ðare
    oþre xx scll, ðare þriddan xii scll. þare feorðan vi scll.

    75. The mund of the best eorlcund widow is a bot of l scillings.
    Of the second rank xx scillings, of the third xii scillings, of
    the fourth vi scillings.

    Gif man widuwan unagne genimeþ, ii gelde seo mund sy.

    76. If a man carry off a widow not in his mund, her mund shall be
    twofold.

The clause relating to the mund of the four grades of apparently eorlcund
(?) widows does not help us much to an understanding of what the grades
of Kentish society may have been. But it emphasises a remarkable trait
of these laws of Ethelbert. Every class is divided in these laws into
grades. The clergy are divided into grades from bishops to clerks. The
female servants of the King’s household are divided into three classes,
and so are the servants of the ceorl’s household. The læts are divided
into three classes. And now the widows, whether all eorlcund or not, are
divided into four classes for the purpose of their mund. The significance
of these divisions will be apparent hereafter. In the meantime the mund
is probably the amount to be paid by a second husband to the parents or
kindred of the widow.

Passing from the mund of the widow, the following clauses throw some
light upon the position of the wife under Kentish custom.

[Sidenote: Position of a wife under Kentish custom.]

    Gif mon mægþ gebigeð, ceapi geceapod sy gif hit unfacne is. Gif
    it þonne facne is ef þær æt ham gebringe ⁊ him man his scæt agefe.

    77. If any one buy a maid, let the purchase stand if without
    guile. But if there be guile, let him bring her home again and
    let them give him his money back.

    Gif hio cwic bearn gebyreþ, healfne scæt age gif ceorl ær swylteþ.

    78. If she bears a living child, let her have half the property
    if the husband die first.

    Gif mid bearnum bugan wille healfne scæt age.

    79. If she wills to go away with her children, let her have half
    the property.

    Gif ceorl agan wile swa an bearn.

    80. If the husband wills to have [them], [let her have] as one
    child.

    Gif hio bearn ne gebyreþ fæderingmagas fioh agan ⁊ morgengyfe.

    81. If she bear no child, let [her] paternal kindred have the
    property and morgengift.

It is obvious from these clauses that under Kentish custom the position
of the wife was very much the same as under Cymric and continental German
custom. The marriage was a fair contract between the two kindreds.

The next clause enjoins a payment of fifty shillings to the ‘owner’ of a
maiden if she be carried off by force.

[Sidenote: The Kentish esne.]

Lastly there are the following clauses relating to the position of the
esne under Kentish custom. The esne is considered to be a ‘servus’
working for hire rather than a theow.

    Gif man mid esnes cwynan geligeþ be cwicum ceorle ii gebete.

    85. If a man lies with an esne’s wife, the husband alive, double
    bot.

    Gif esne oþerne ofslea unsynnigne, ealne weorðe forgelde.

    86. If one esne kills another innocently, let the full worth be
    paid for.

    Gif esnes eage ⁊ foot of weorðeþ aslagen ealne weorðe hine
    forgelde.

    87. If an esne’s eye and foot are struck out or off, let the full
    worth be paid for it.

    Gif man mannes esne gebindeþ vi scll gebete.

    88. If a man bind a man’s esne, vi scillings bot.

There is nothing in these clauses, I think, to show that the bot was
payable to any one but the owner of the esne.

What the ‘full worth’ of the esne was we are not told.


IV. THE LAWS OF HLOTHÆRE AND EADRIC, A.D. 685-6.

Between the date of the Laws of Ethelbert and those of other Kentish
kings which have been preserved nearly a century had intervened. So that
these later laws of Kent are nearly contemporary with King Ine’s Dooms of
Wessex.

[Sidenote: Eorlcund and ceorlisc classes.]

As in Ethelbert’s laws, the main division of classes of freemen seems
still to have been that between eorlcund and ceorlisc. But we get further
valuable information.

The Laws of Hlothære and Eadric open with clauses which seem to fix the
wergeld of the eorl at three times that of the ordinary freeman.

[Sidenote: The owner’s liability for an esne’s homicides.]

They deal with the liability of an owner of an _esne_[307] for his
servant’s homicides.

[Sidenote: If an esne slay an eorl.]

    Gif mannes esne eorlcundne mannan ofslæhð. þane þe sio þreom
    hundum scill gylde se agend þone banan agefe ⁊ do þær þrio
    manwyrð to.

    1. If any one’s esne slay an _eorlcund_ man, one that is paid for
    with three hundred scillings, let the owner give up the slayer,
    and add _three manwyrths_ thereto.

    Gif se bana oðbyrste feorðe manwyrð he to-gedo ⁊ hine gecænne mid
    godum æwdum ꝥ he þane banan begeten ne mihte.

    2. If the slayer escape, let him add a fourth _manwyrth_ and let
    him prove with good compurgators that he could not catch the
    slayer.

The next two clauses are as follows:--

[Sidenote: If he slay a freeman.]

    Gif mannes esne frigne mannan ofslæhð þane þe sie hund scillinga
    gelde se agend þone banan agefe ⁊ oþer manwyrð þær to.

    3. If anyone’s esne slay a freeman, one that is paid for with 100
    scillings, let the owner give up the slayer and a second manwyrth
    thereto.

    Gif bana oðbyrste, twam manwyrðum hine man forgelde ⁊ hine
    gecænne mid godum æwdum ꝥ he þane banan begeten ne mihte.

    4. If the slayer escape, let [the owner] pay for him with two
    manwyrths and let him prove with good compurgators that he could
    not catch the slayer.

This reading of these clauses is not that of Thorpe or of Schmid, but
that approved by the best authorities.[308]

[Sidenote: Were the wergelds 300 and 100, or are they half-wergelds?]

Following this reading as philologically the most correct one, the
inference at first sight might be that under Kentish law the wergeld of
the eorlcundman was 300 Kentish scillings and that of the freeman 100
scillings.

But there may be reason to doubt the correctness of such an inference.

[Sidenote: The clauses limit and lessen the owner’s liability.]

For the present we may leave the question of the amount of the wergelds
to consider the meaning of the clauses in their main intention. And
this seems to be clear. Henceforth the owner of an esne was not to be
accountable for the wergeld of the person slain or any part of it further
than that if an eorlcundman payable for with 300 scillings be slain he
must hand over the esne and _three_ times his manworth in addition; and
in the case of the freeman payable for with 100 scillings he must hand
over the esne and add _one_ manworth in addition. That is to say, the
esne was in both cases to be handed over and a manworth for each hundred
scillings of the amount at which the person slain is paid for.

Now, I think, we must conclude that these clauses were intended to
make an innovation upon ancient custom rather than to confirm it. And
therefore it may be well to compare with them the parallel evidence of
the laws of other tribes, as to the responsibility of an owner for his
slave’s homicides.

[Sidenote: Under tribal custom at first complete.]

Under the Welsh Laws (ii. p. 105) the liability of the owner of a slave
for his homicides was apparently complete.

    If a bondman commit homicide of whatever kind, it is right for
    the lord of the bondman to pay for the deed of his bondman as for
    a murderer, for he is a murderer.

And this probably must be taken as the general rule of tribal custom in
its early stages.

In the laws of the Saxons and of the Anglii and Werini the ancient German
tribal custom was still preserved. The owner of an animal or a slave was
liable for any injury done by either, very much as if it had been done by
himself (‘Lex Sax.’ xii. Ang. and Wer. 16 and 52).

[Sidenote: Then made a half-wergeld only, and the slave to be handed over
for the other half.]

But it would seem that Roman and Christian feeling very early suggested
that this was hard upon the innocent owner. Hence in some of the laws
the compromise was made that the owner should pay only a _half_-wergeld
and hand over the offending animal or slave instead of the other half.

That this innovation was not altogether acceptable to tribal feeling is
shown by clauses in the ‘Pactus III.’ of the Alamannic laws. The whole
wergeld was to be paid by the owner if his horse, ox, or pig killed a man
(s. 18). But an exception was made in the case of the dog. If a man’s dog
killed any one, a _half_-wergeld (medium werigeldum) was to be paid, and
if the whole wergeld was demanded, all the doors but one of the house of
the person making the demand were to be closed and the dog was to be hung
up nine feet from the only one left open for ingress or egress, and there
it must remain till it fell from putrefaction. If it was removed or any
other door was used, the wergeld was to be returned (s. 17).

Grimm (‘D. R.’ p. 665) has pointed out that in the _Ostgotalaga_ (Drap.
13, 2) a similar archaic practice is described when a _slave_ had killed
a man. The _owner_ of the slave under this law ought to pay the whole
wergeld, and if he did not do so the _slave_ was to be hung up at _his_
(the owner’s) house door till the body putrefied and fell. Thus the same
archaic method of punishing the delinquent was retained in both cases.
But the significant point is that so long as the whole wergeld was due
from the owner it was at the owner’s door that the body of the slayer was
to be hung up, while when the _half_-wergeld only was to be paid, the dog
was to be hung up at the door of the person who improperly demanded the
whole wergeld. Thus, as in so many other cases, the twelfth-century laws
of the North preserved the earlier custom of the payment of the whole
wergeld, while the Alamanni, after migration into contact with Roman and
Christian civilisation, in their laws of the seventh century modified
the custom, at the same time retaining the archaic method of forcing
compliance with the modification. It must be remembered that every change
which relieved the innocent owner from liability, wholly or in part,
robbed the kindred of the person slain of the whole or the part of the
wergeld.

The compromise of payment of the half-wergeld and the handing over of the
offending animal or slave was not confined to the Alamannic laws.

In the Ripuarian Law xlvi. the animal which had killed a man was to be
handed over and received ‘in medietatem wirigildi’ and the owner was to
pay the other half.

[Sidenote: So in Codex I. of Lex Salica, but afterwards owner released
from the half-wergeld.]

In the Lex Salica the same rule was at first applied to the case of
homicide by a slave or læt. A half-wergeld was to be paid and the slave
or læt handed over for the other half.[309] This was the rule according
to the Codex I. But in the later Codices, VII. to X., and in the ‘Lex
Emendata,’ the lord, if innocent, was allowed to get off altogether
from the half-wergeld and had only to give up the slave or the læt.
This further innovation seems to have been connected with the Edict of
Chilperic (_circ._ A.D. 574) and thus probably represented the result of
ecclesiastical influence at very nearly the date of the earliest Kentish
laws.

[Sidenote: In the Canons of sixth century the slave was to be given up
and another besides.]

We have only to recur to the Canons of the Celtic Church of Brittany
and South Wales of the sixth and seventh centuries, considered in the
earlier part of this volume, to recognise the hand of the Church in these
innovations upon earlier tribal custom. They extended to Celtic as well
as to German districts. In Canon 5 of the so-called ‘Canones Wallici’ the
rule was laid down that ‘if any master should permit his slave to carry
arms, and the slave killed a freeman, the owner must hand over the slave
and another besides’ (_supra_, p. 108).

The half-wergeld here is omitted altogether, and, as in the case of the
Kentish freeman, two slaves are to be given up instead of one.

[Sidenote: In the Burgundian Law slave to be given up and the owner to be
free.]

These Canons were nearly contemporary with the later Kentish laws, and
the same stage of innovation seems to have been reached in both. A still
further and final stage had been reached in the Burgundian Law already
quoted (_supra_, p. 124) in which in the case of homicide by a slave,
unknown to his master, the slave was to be delivered up to death and the
master was to be free from liability. The _parentes_ of the slain person
were to get nothing, not even the slave, ‘because, as we enact that the
guilty shall be extirpated, so we cannot allow the innocent to suffer
wrong.’ The whole process of change had taken place in the Burgundian
district by the sixth century. But it would seem that in Kent the middle
stage only had been reached at the date of the laws of Hlothære and
Eadric.

Evidence that the further stage had at last been reached in Anglo-Saxon
law is perhaps to be found in the nearly contemporary law of Ine (s.
74) which enacts that if a _theow-wealh_ slay an Englishman, the owner
shall deliver him up to the lord and the kindred or give sixty scillings
for his life. Here no further manworths are required. But possibly the
peculiar position of the _theow-wealh_ may have something to do with
it, so that we ought not perhaps to assume as certain that the clause
represented a still further general innovation upon tribal custom beyond
that described in the Kentish clauses.

[Sidenote: Kentish clauses meant to modify the previous rule: which may
have been the half-wergeld of 300 and 100 scillings.]

Returning to the Kentish clauses and assuming that their direct intention
was to modify previous custom, we are now in a position fairly to judge
what the _previous_ rule may have been.

Reasoning from the analogy of other laws, it seems most likely to have
been to make the owner pay a half-wergeld of the person slain and hand
over the esne for the other half--the stage of custom reached in the
Ripuarian Laws and Salic Laws of Codex I.

And if this were in fact the former custom previous to the enactment in
these clauses, then without departing from the correct literal reading
of the text it may be that the words in the parenthesis in each clause
may refer, not to the eorlcundman’s or the freeman’s wergild--the word
‘_leod_-geldi’ is not used--but to the amount hitherto payable in the
particular case of a man slain by an esne. The 300 and 100 scillings may
be the _half_-wergeld hitherto payable, instead of which thenceforth the
owner of the esne is to pay three manworths or one manworth in addition
to handing over the esne.

If previous to the innovation the eorlcundman had been paid for in such
a case with three hundred shillings and the freeman with one hundred, the
words in their strictly correct literal meaning might perhaps rightly be
read thus:--

    If any one’s esne slay an eorlcundman, one who _is_ [now] paid
    for at three hundred scillings, let the owner [in future] give up
    the slayer and add _three_ manworths [of the esne] thereto.

    If anyone’s esne slay a freeman, one who _is_ [now] paid for at
    _one_ hundred scillings, let the owner [in future] give up the
    slayer and add one manworth [of the esne] thereto.

This reading of the clauses, putting emphasis upon what is _now_ the gild
(þane ꝥ sie)--the _three_ and the _one_ hundred scillings--in contrast
with what the owner has in future to do, _i.e._ pay _three_ manworths
and _one_ manworth instead of the _three_ hundred and _one_ hundred
scillings in addition to the handing over of the esne--seems to me more
than any other rendering to account for the insertion of the parenthesis
stating the amounts payable for the eorlcundman and freeman. If the
word _leod-gylde_ had been used it might have been different. But I am
informed on the best authority that the words _gylde_ and _gelde_ in the
two clauses are not substantives but used in an adjectival sense, and in
this case they would apply to a half-wergeld payable as correctly as to a
whole one.

[Sidenote: Was 100 scillings the half-wergeld and so the medume wergeld
of King Ethelbert’s laws?]

At the same time the mention of 100 scillings, if the payment be a
_half_-wergeld, may help to an understanding of the _medume_ leodgeld
of 100 scillings mentioned in Ethelbert’s Laws. It suggests that the
_medume_ wergeld was a modified or middle one which, like the _medium_
werigeldum and _medium_ precium of the mediæval Latin of the Alamannic
and other laws, had come to mean a _half_ one. Perhaps, after all, if
we recognise clerical influence in the framing and modification of the
Kentish laws, the translation of the Latin ‘_medium werigeldum_’ by the
Anglo-Saxon ‘_medume leodgeld_’ is not very unnatural.

Before we leave the laws of Hlothære and Eadric there are one or two
further clauses worth notice.

[Sidenote: System of oath-helpers.]

Clause 5 reminds us that, though scarcely mentioned in these laws, the
system of compurgation was in force. A freeman charged with a crime has
to clear himself by the oaths of a number of ‘free æwda-men.’

Clause 6 makes mention of the protection of a woman by her kindred:--

[Sidenote: Position of the wife.]

    Gif ceorl acwyle be libbendum wife ⁊ bearne riht is ꝥ hit ꝥ bearn
    medder folgige ⁊ him mon an his fædering-magum wilsumne berigean
    geselle his feoh to healdenne oþþæt he .x. wintra sie.

    6. If a husband (ceorl) die wife and child yet living, it is
    right that the child follow the mother: and let that sufficient
    guardian be given to him [the child] from among his paternal
    kinsmen to keep his property [cattle?] till he be ten winters old.

These clauses, unimportant perhaps in themselves, are useful as showing
that behind the silence of the laws tribal custom still lingered on,
however seldom and slightly it might be brought into evidence as fresh
circumstances might suggest new clauses.

[Sidenote: Mund-byrds unchanged.]

There are also some clauses which are useful as showing the continuance
of the mund-byrds of king and ceorl of King Ethelbert’s Laws, unchanged
in amount, a century later.

By s. 11, if a man uses abusive words to another in any one’s ‘flet,’
‘let him pay one scilling to him who owns the “flet” and six scillings
to him to whom he said the words and twelve scillings to the King.’ So
also in s. 12, one scilling is to be paid to the owner of the ‘flet,’
six scillings to the person wronged, and twelve scillings to the king.
The six scillings to the person insulted or wronged is the _mund_ of the
freeman or ceorl. Lastly, in s. 13 in case of a slaying in a drinking
bout:--

    Gif man wæpn abregde þær mæn drincen ⁊ þær man nan yfel ne deð
    scilling þan þe ꝥ flet age ⁊ cyninge xii scill.

    If a man draw a weapon where men are drinking and no harm be
    done, then a scilling to him who owns the flet and xii scillings
    to the King.

    Gif ꝥ flet geblodgad wyrðe forgylde þem mæn his mund-byrd ⁊
    cyninge l. scill.

    If the flet be stained with blood, let him pay to the man [who
    owns the flet] his mund-byrd and 50 scillings to the King.

[Sidenote: Mund-byrd of the King still 50 scillings and of the ceorl 6.]

Thus we have again the mund-byrds of King Ethelbert’s Laws:--

    Of the King 50 scillings.
    Of the ceorl 6 scillings.

The crime of killing another in a drinking bout is a breach of the _mund_
of the owner of the ‘flet’ as well as a breach of the peace of the King.


V. THE LAWS OF KING WIHTRÆD, A.D. 690-696.

One more chance remains for further information regarding Kentish
wergelds, viz. in the ‘Laws of King Wihtræd,’ who became King of the
Kentish men about A.D. 690 and, according to Bede, died A.D. 725. A
century had passed since the Laws of Ethelbert were enacted, in the time
of St. Augustine. Brihtwald was now Archbishop of Canterbury, and at an
assembly of Church and people ‘the great men decreed, with the suffrage
of all, these dooms, and added them to the lawful customs of the Kentish
men.’ These laws are mainly ecclesiastical both in their origin and
subject.

[Sidenote: Mund-byrd of King and Church both 50 scillings, and so no
change in the Kentish currency.]

In the first two clauses the Church was declared to be ‘free from
gafols,’ and the mund-byrd of the Church was declared to be the same
as the King’s, viz. fifty scillings--as in Ethelbert’s Laws. There is
therefore no marked change in the Kentish currency, though by this time
it must have been almost entirely silver so far as any Kentish coinage
was concerned.

Clause 5 introduces us for the first time in the Kentish laws to the
distinction between the _gesithcund_ and _ceorlisc_ classes.

    Gif þæs geweorðe gesiðcundne mannan ofer þis gemot ꝥ he unriht
    hæmed genime ofer cingæs bebod ⁊ biscopes ⁊ boca dom se ꝥ gebete
    his dryhtne .c. scill. an eald reht. Gif hit ceorlisc man sie
    gebete .l. scill.…

    When it happens to a gesithcundman after this gemot that he
    enters into unlawful marriage against the command of the King and
    the bishop and the book’s doom, let him make bot for it to his
    lord with 100 scillings according to ancient law. If he be a
    _ceorlisc_ man, let him make bot with 50 scillings.…

It would not do to conclude from this single allusion to gesithcund
and ceorlisc men that the Kentish division of classes--eorlisc and
ceorlisc--had given way before the Wessex division of classes--gesithcund
and ceorlisc.

There had been no interval between this and the last set of Kentish laws
long enough to have made likely any radical change in social conditions,
and as the ‘ancient law’ alluded to was probably ecclesiastical and not
especially Kentish, either in its origin or its terms, it would not
be wise to build anything upon the use of the word ‘gesithcund’ beyond
recognising the natural tendency of neighbouring peoples under the same
ecclesiastical influence to approximate in phraseology especially in
regard to matters of general ecclesiastical interest.

Clauses which follow regulating the penalties for work on Sundays, or
neglect of baptism, or a ceorl’s making offerings to devils without
his wife’s knowledge, or a man’s giving flesh meat to his family on
fast days, do not interest us in this inquiry further than as revealing
lingering traces of paganism and the ecclesiastical character of these
laws of Wihtræd.

There are, however, a few clauses which incidentally come within the
lines of our inquiry.

[Sidenote: The position of the freedman under Kentish custom.]

Clause 8 is especially interesting as showing that when freedom was given
by a lord to his man and he became folkfree, still, even though he left
the district, his _inheritance_, his _wergeld_, and the _mund_ of his
family remained with the freedom-giver.

    Gif man his mæn an wiofode freols gefe se sie folc-fry.
    freolsgefa age his erfe ænde wer-geld ⁊ munde þare hina sie ofer
    mearce þær he wille.

    If any one give freedom to his man at the altar, let him be
    folkfree; let the freedom-giver keep the heritage and wergeld and
    the _mund_ of his family, be he over the march wherever he will.

[Sidenote: His wergeld goes to his lord.]

Here tribal custom asserts itself. The freedman, though freed at the
_altar_, is to be _folkfree_, and yet, although folkfree and able to go
wherever he will, he cannot _inherit_, because he is nobody’s heir. He
had no free parents from whom to inherit. His lord inherited what his
unfree man might leave behind him. The freedman’s wergeld if he were
slain still went to his lord, for he had no free kindred to claim it.
His family remained in the lord’s _mund_ unless they also had been set
free.

These points were doubtless all incident to the position of a newly
made freedman under Kentish custom, and this enactment was probably
needful only to make it clear that freedom given _at the altar_, whatever
churchmen might think, was not to modify the customary rules incident to
freedom-giving. The evidence of the clause is, however, valuable because
for one moment it accidentally lifts the veil and shows that Kentish
tribal custom was in these matters much the same as we have found tribal
custom elsewhere, and it is particularly valuable as direct evidence that
there was a class of freedmen under Kentish custom as everywhere else.

There are also the following clauses on oaths.

[Sidenote: Clauses on oaths of different persons.]

    Biscopes word ⁊ cyninges sie unlægne buton æðe.

    16. A bishop’s and a King’s word is unimpeachable without an oath.

    Mynstres aldor hine cænne in preostes canne.

    17. A ‘Minster’s ealdor’ clears himself in the same way as a
    priest.

    Preost hine clænsie sylfæs soðe in his halgum hrægle ætforan
    wiofode þus cweðende ‘Ueritatem dico in Xp̄o, non mentior.’
    Swylce diacon hine clænsie.

    18. A priest clears himself by his own declaration in his holy
    garments before the altar, saying ‘I speak the truth in Christ, I
    do not lie.’ And so also does the deacon.

    Cliroc feowra sum hine clænsie his heafod-gemacene ⁊ ane his hand
    on wiofode oðre ætstanden að abycgan.

    19. A cleric shall clear himself as one of four of his like; with
    one hand on the altar, the others standing by and accompanying
    the oath.

    Gest hine clænsie sylfes aðe on wiofode swylce cyninges þeng.

    20. A stranger (gest) shall clear himself by his own oath at the
    altar, and in the same manner as a ‘King’s thane.’

    Ceorlisc man hine feowra sum his heafod-gemacene on weofode ⁊
    þissa ealra að sie unlegnæ.…

    21. A ceorlisc man shall clear himself with four of his like at
    the altar, and the oath of all these shall be unimpeachable.…

[Sidenote: Under clerical influence the single oath of the stranger to be
taken as good.]

These statements regarding oaths, like other laws of Wihtræd, betray
their ecclesiastical origin, and following directly after the imposition
of penalties for what may be called ecclesiastical sins, very difficult
of proof, seem to have been inserted with special reference to them.
They are interesting, however, as reminding us again that the system of
oath-helpers was not absent from Kentish custom.

Section 20 of this clause is also interesting, which places the
_stranger_ (gest)--may we not say the ‘King’s guest’?--in the same
position as the ‘King’s thane’ as to the validity of his single oath.
Both seem to be specially under the King’s protection: in the case of the
King’s thane, on account of his official or military position; in the
case of the stranger, probably because of the absence of his kindred.
The King being in the place of kin to the stranger, his single oath is
accepted.

These laws end with clauses referring to theft more or less closely
resembling those so prominent in King Ine’s Dooms.

[Sidenote: Clauses as to theft like those in Ine’s laws.]

They state that a thief slain as a thief was to be without wergeld. If a
freeman were caught in the act of thieving, the King might either kill
him, or sell him over sea, or release him on payment of his wergeld. He
who should seize and hold him was to be entitled to the half-wergeld, or
if he were put to death to seventy scillings. A man coming from far or a
foreigner, when off the public way, who should neither call aloud nor
blow a horn, was to be taken to be a thief, and put to death or redeemed
by a wergeld.

The last clause resembles Ine s. 20 so closely as to suggest a common
origin.

    (Wihtræd, 28)

    Gif feorran cumen man oþþe fræmde buton wege gange ⁊ he þonne
    nawðer ne hryme ne he horn blawe for ðeof he bid to profianne
    oþþe to sleanne oþþe to alysenne.

    (Ine, 20)

    Gif feor cuman man oððe fremde buton wege geond wudu gonge ⁊ ne
    hryme ne horn blawe for ðeof he bid to profianne oððe to sleanne
    oððe to alysanne.

The close resemblance between these clauses confirms the suggestion that
the expression ‘gesithcund’ in the Kentish laws of Wihtræd may have been
borrowed from Wessex. Nowhere else than in these contemporary laws of Ine
and Wihtræd does the term gesithcund appear, except in the fragments of
Mercian law, which may thus belong to the same period.


VI. THE DIVISION OF CLASSES UNDER KENTISH CUSTOM.

We have now examined the Kentish laws especially regarding the amount of
the wergelds and mund-byrds. Although we may not have arrived at absolute
certainty, yet some light may have been thrown upon the important matter
of the division of classes.

[Sidenote: Mund-byrds of King, eorl, and ceorl.]

So far as the amounts of the wergeld are concerned, the contrast was
between the eorl and the freeman, the wergeld of the eorl being three
times that of the freeman. But as regards the mund-byrd the contrast was
between eorl and ceorl. The mund-byrds were:--

  King    50 Kentish scillings
  Eorl    12        ”
  Ceorl    6        ”

There must evidently be either identity of meaning or much overlapping
in the terms freeman and ceorl. Otherwise the ceorl would be without a
wergeld and the freeman without a mund-byrd.

And yet, on the other hand, there was probably some reason why the
particular words used were chosen in the several clauses, and to a
certain extent it may not be far to seek.

[Sidenote: The ceorl was a man with a household and flet and so had a
mund-byrd.]

So far as the word _ceorl_ had a special sense, it meant the married
man,[310] the husband with a homestead and household, like the
North-country husbandman with his husbandland. In this special sense
every ceorl may have been a freeman, but every freeman may not have
been a ceorl. Hence in the clauses as regards mund-byrd the contrast
is between the eorl and the ceorl. Both were men with homesteads and
households. Unless they had persons under their ‘mund’ they could not
have had corresponding mund-byrds. The freeman who did not happen to be
a man with a homestead and household could have no mund-byrd, because he
had no precinct within which his peace could be broken, and no household
under his protection. But he could have a wergeld.

So, again, in the clauses quoted relating to injuries done to servants in
the Laws of Ethelbert:--

    14. If a man lie with an eorl’s birele, let him make bot with xii
    scillings.

    16. If a man lie with a ceorl’s birele, let him make bot with vi
    scillings. If with a theow of the second class, l sceatts; if
    with one of the third class xxx sceatts.

    25. If any one slay a ceorl’s hlafæta, let him pay bot with vi
    scillings.

The ceorl in this contrast is again a husbandman with a homestead and
household and with bireles and theows and hlafætas under his roof or
in his ‘ham.’ Wherever in the Kentish laws the word ‘ceorl’ is used in
any other sense, I think the meaning is confined to that of the married
man--the husband, as in the phrase ‘husband and wife.’

So regarded, the division for purposes of mund-byrd into eorlisc and
ceorlisc classes was natural, and so also, for purposes of wergeld, was
the distinction between eorl and freeman. As regards the wergeld, we may
consider the terms ceorl and freeman as practically interchangeable,
inasmuch as every ceorl was certainly a freeman, and the unmarried
freeman was probably a cadet or member of the household of some eorlisc
or ceorlisc man.

       *       *       *       *       *

Continental society included everywhere, as we have seen, such classes
as the Roman liti and liberti composed of strangers and freedmen who
had not so far risen in the social scale as to have fully recognised
rights of inheritance and whose wergeld never was of the same amount as
that of the full freeman. It is in connection with such classes that the
tribal distinction of blood came in. If for the full freeman we were to
substitute the word _tribesman_, with all the background of hyndens of
kinsmen to fight and to swear for him involved in the term, then from the
same point of view we must expect to find in Kent, as everywhere else,
strangers in blood below the tribesmen, like the aillts and alltuds and
taeogs of the Cymric Codes, the fuidhirs of the Brehon Laws, if not the
liberti and liti of the Gallo-Romans, or, perhaps still more nearly to
the point, the leysing classes of the Norse Laws.

[Sidenote: The Kentish freedman and læt resembled the Norse leysing.]

We have already found incidental mention of the Kentish freedman. He
cannot after enfranchisement have been classed as an esne or a theow.
There would seem to be no other class mentioned to which he could belong,
unless it might be that of the læts of Ethelbert’s Laws.

It is worth while, therefore, to recur to the single clause in
Ethelbert’s Laws already quoted respecting the læts and to examine it
more closely. Within the compass of its few words there may perhaps be
found evidence connecting the status of the Kentish læt with what we have
learned of the status and conditions of the Norse leysing.

    26. If a man slay a læt of the best class, let him pay 80
    scillings; if one of the second class, let him pay 60 scillings;
    of the third, let him pay 40 scillings.

The clause does not mention to whom the payments are to be made, whether
to the læt himself or, as in the case of the freedman, to his late owner
or lord. But the payments are not called leodgelds as are the wergelds of
freemen.

[Sidenote: Three classes in both cases.]

Looking to the payments themselves they are graduated for three classes
of læts. There were also, under Norse custom, three classes of leysings
gradually growing by successive steps towards a higher grade of freedom
as kindreds grew up around them and became more and more nearly perfect
till at last the ninth generation from the first freedman became fully
free. Why may not the three grades of Kentish læts have been doing the
same?

Let us compare the amounts of the payments for the slaying of the
three classes of Kentish læts with those for the three classes of Norse
leysings.

We have seen over and over again that the Kentish scilling regarded as
twenty sceatts was an ore or a Roman ounce of silver. Therefore the
Kentish payments, stated in ounces of silver, were as follows:--

  Best class of læt  80 ounces of silver
  Second class       60    ”        ”
  Third class        40    ”        ”

The Norse ore was also in wheat-grains a Roman ounce of silver. The
wergelds of the three classes of leysings in the Norse laws were as
under:--

  Frialsgiafi or newly made freedman   40 ores of silver
  Leysing after making ‘freedom ale’   60   ”       ”
  Leysinjia-son or highest rank of   }
    leysing whose great-grandfather  } 80   ”       ”
    was a leysing[311]               }

[Sidenote: And the wergelds similar.]

So that the wergelds of the three classes of Kentish læts corresponded
exactly in amount with those of the three classes of Norse leysings, when
reckoned both in silver.

We may further compare these payments for the Kentish læts with those
for the freedman of the nearly contemporary Bavarian laws. They are
stated in gold solidi of three tremisses, and the Kentish solidus was
of only two tremisses. We have seen that the Bavarian freedman was paid
for with forty solidi, _i.e._ sixty Kentish scillings. The payment thus
corresponded with that for the Kentish læt of the second class.

[Sidenote: The grades the result of growth of kindred.]

These correspondences are unexpected and very significant, but the
significance is made still more important by the clause in the Laws of
Wihtræd describing the position of the newly made freedman under Kentish
custom. The description of his position might almost be taken as a
description of the ‘frialgiafi’ or newly made leysing of the Norse laws.
Under Kentish law the freedman was to be folkfree, but ‘the freedom-giver
was to keep the heritage and wergeld and mund of his family, be he over
the march wherever he will.’ This was, as we have seen, almost exactly
the position of the Norse leysing before he had made his freedom ale. He
had as yet no kindred to swear and to fight for him. He was still under
the mund and protection of his lord. His descendants could only obtain
the protection of a kindred and become wholly free from the _thyrmsl_
of the lord, when in the course of generations a kindred had grown up
gradually around them.

So too, as we have seen, under the Bavarian laws the freedman’s
wergeld went to his lord.[312] Under the Frisian law the wergeld of
the _litus_ went to his lord.[313] Under Ripuarian law even the ‘homo
denarialis’--the freedman who became a Frank with a full wergeld--was
recognised as having at first no kindred. If he had no children, his
property went to the fisc. And it was not till the third generation
that his descendants had full rights of inheritance.[314] We have
already found abundant evidence of the continued force of tribal custom
and tribal instincts in regard to the importance of kindred while
considering the meaning and function of the hyndens in connection with
the twelve-hynde and twy-hynde classes of the Anglo-Saxon laws. These
remarkable correspondences between the position held by the læts in Kent
and that of the leysings and freedmen and liti of the Continental laws,
without our making too much of them, may fairly be taken as additional
evidence of the tenacity of tribal custom in these matters.[315]


VII. THE AMOUNT OF THE KENTISH WERGELDS.

[Sidenote: Probable Kentish wergelds eorl 600, freeman 200, Kentish
scillings.]

Once more we return to the amount of the wergelds of the Kentish eorl and
freeman.

We have seen reason to believe that the payments of 300 and 100 scillings
of the laws of Hlothære and Eadric were half-wergelds, and that the full
wergelds were 600 and 200 scillings.

If they may be so considered they are at once put on line with the
Frankish wergelds. The threefold wergeld of the eorl becomes evidently
due to his noble birth or official position. And, if the Kentish and
Frankish solidi had been alike, the similarity of the wergelds would have
been complete.

[Sidenote: As in the Frankish laws.]

The wergelds of the Frankish group of laws were found to be as follows:--

  Lex Salica, Graphio or ingenuus in truste Regis  600 solidi }
      Frank or Barbarian living under Salic law    200   ”    }

  Lex Ripuariorum, Comes &c. in truste Regis       600   ”    }
      Ingenuus                                     200   ”    }

  Lex Angliorum et Werinorum, Adalingus            600   ”    }
      Liber                                        200   ”    }

  Lex Chamavorum, Homo Francus                     600   ”    }
      Ingenuus                                     200   ”    }

In all these cases the wergeld of the Royal official or person in high
rank is threefold that of the _liber_ or _ingenuus_.[316]

[Sidenote: Confirmed by comparison with the King’s mundbyrd.]

Confining attention now to the position of the Kentish freeman, further
confirmation of the view that his wergeld was 200 Kentish scillings may
be derived from a comparison of the King’s mundbyrd with his wergeld, and
the corresponding Continental payments _pro fredo_ with the wergelds of
the _liber_ and _ingenuus_ of the Continental laws.

The Kentish mundbyrd of 50 Kentish scillings was one fourth of the
Kentish freeman’s wergeld if 200 Kentish scillings.

The Mercian mundbyrd of five pounds of silver was one fourth of the
Mercian wergeld of 1200 scillings of four pence, or twenty pounds.

The Wessex mundbyrd of five pounds would be one fourth of the Wessex
wergeld proper if the latter might be looked upon as the same as the
Mercian with the mundbyrd added.[317]

The Alamannic and Bavarian payments _pro fredo_ of 40 solidi were one
fourth of the Alamannic and Bavarian wergeld of 160 solidi.

And Brunner[318] and others consider that, although the payment _pro
fredo_ was sometimes an extra payment, the 200 solidi of the Frankish
wergeld equalled 160 solidi with one fourth added _pro fredo_.

Now, if instead of holding the Kentish freeman’s wergeld to be 200
Kentish scillings we were to take it to be the _medume_ wergeld of 100
scillings, we should destroy the correspondence of the King’s mundbyrd
with the wergeld, and make the mundbyrd half the wergeld instead of a
quarter: unlike what it was in the other laws. This hardly seems a likely
supposition.

[Sidenote: And also with payment for eye, hand, and foot.]

We get still further evidence if we compare the payments for the eye,
hand, and foot in the Kentish and Continental laws. We have seen that the
Kentish payment was 50 scillings, _i.e._ the same as the King’s mundbyrd
and one fourth of the wergeld of 200 scillings. In the Alamannic and
Bavarian laws and in those of the Chamavi the payment for these, like
the payment _pro fredo_, was one quarter of the freeman’s wergeld. In
the Frankish laws it was one half. But the reason of this is, not that
either the Frankish payment _pro fredo_ or the wergeld is less than in
other laws, but that the payment for the eye, hand, and foot is greater.
The Frankish payment for the eye, hand, or foot was 100 solidi of three
tremisses, _i.e._ half as much again as the Kentish freeman’s wergeld
would be if only 100 Kentish scillings of two tremisses; which again
seems unlikely.

At first sight the Wessex payments for the eye, hand, and foot present an
anomaly. The Wessex twelve-hynde wergeld of 1200 Wessex scillings of five
pence at a ratio of 1:10 corresponds, as we have seen, with the Frankish
freeman’s wergeld of 200 solidi. The payment for the eye, hand, and foot
in King Alfred’s Laws is 66⅔ Wessex scillings, _i.e._ only one eighteenth
of the twelve-hynde wergeld. But the explanation no doubt is that in
the Laws of King Alfred the payments for injuries are stated for the
_twyhynde_-man’s grade, those for the eye, hand, and foot being one third
of the twyhyndeman’s wergeld of 200 Wessex scillings.

[Sidenote: Kentish freeman’s wergeld most likely 200 Kentish scillings,
or 4000 sceatts.]

On the whole, therefore, these considerations seem to strengthen the
supposition that the Kentish freeman’s wergeld was 200 Kentish scillings.
That the Kentish wergeld should differ from that of Mercia and Wessex
need not surprise us, seeing that we started with the warning that we
should find it so as regards both the _barones_ and _villani_. To the
writer of the so-called Laws of Henry I. the eorl was no doubt the _baro_
and the freeman or ceorl the _villanus_ of Norman phraseology. And we
need not wonder at his confusion if he had nothing but the laws to guide
him. It is necessary, however, to look at the question of the wergelds
from a broader point of view than his could be.

It must not be forgotten that the Continental wergelds of the Merovingian
period were all stated in gold solidi. The first emigrants into Britain
must have known this perfectly well. Kentish moneyers coined gold
tremisses, and when they afterwards coined silver it was in silver
tremisses of the same weight, which earned the name in England of
‘sceatts.’

Any exact comparison of English and Continental wergelds must obviously
be dependent upon the ratio between gold and silver.

[Sidenote: Archbishop Egbert’s priest’s wergeld also 4000 sceatts--_i.e._
200 ounces of silver or _Mina Italica_ of gold.]

The Kentish scilling of two gold tremisses at 1:10 was reckoned in the
Laws of Ethelbert as equal to 20 sceatts--_i.e._ to the Roman ounce--and
the wergeld, if of 200 scillings, was thus, as we have seen, a wergeld in
silver of 200 ounces or 4000 sceatts. We have seen also that Archbishop
Egbert claimed for his priests a wergeld of 200 ounces of silver, which
thus would accord exactly with the Kentish wergeld of 200 scillings. It
might almost seem that he may have consulted his colleague the Archbishop
of Canterbury and fixed his clerical demand in accordance with the
Kentish wergeld rather than with that of Wessex or Mercia.

Nor was there anything unnatural or abnormal in the Kentish wergeld of
200 ounces of silver, inasmuch as 200 Roman ounces of silver at a ratio
of 1:10 would equal the _Mina Italica_ of twenty Roman ounces or of two
ancient Roman pounds of gold.

We may therefore with confidence, but without claiming certainty, fairly
state the Kentish wergelds in Kentish scillings and sceatts, thus:--

[Sidenote: Kentish wergelds.]

            Kentish
           scillings                 Sceatts

  Eorl        600 (possibly 300?) =  12,000
  Freeman     200 (possibly 100?) =   4,000
  Læt (1)      80                 =   1,600
   ”  (2)      60                 =   1,200
   ”  (3)      40                 =     800

And when put together in this way the proportion between the wergeld of
the freeman and that of the læts becomes important. In the Norse laws
the leysing’s wergeld was one sixth that of the hauld or odalman. In the
Bavarian and Saxon laws the wergeld of the _litus_ was one fourth that of
the freeman. Anything like these proportions in Kent would make a wergeld
as low as 100 scillings for the freeman very improbable.

[Sidenote: The sceatts could not have been farthings.]

Lastly, perhaps it may be fair to the reader to recur once more to the
question of the Kentish scilling. If any doubt should remain as to
whether we are right in regarding the sceatt as the silver coin of that
name, twenty of which went to the Roman ounce until it was superseded by
the penny of Offa and Alfred, surely that doubt must now be dispelled.
For if, according to the view of Schmid and others, the sceatt were to
be taken as a farthing or _quarter_ of a sceatt, the correspondence of
Kentish with Continental wergelds and payments _pro fredo_ would be
altogether destroyed. The eorl’s triple wergeld at a ratio of 1:10 would
be only one sixth (and if 300 scillings only one twelfth) of that of the
Frankish noble or official, while the Kentish freeman’s wergeld would be
reduced to one sixth (or if 100 scillings to only one twelfth) of that of
the Continental _liber_ or _ingenuus_.

One perhaps must not say that such a result would be impossible. But
would it be a likely one? We should have to suppose that the Jutish
chieftain, perfectly familiar with the Continental wergeld of the
freeman as 200 or 160 gold solidi, equated by long tradition with the
round number of 100 head of cattle, upon settlement in Kent reduced the
wergeld of the freeman to one sixth or one twelfth of what it was in the
country he came from. From what we know of the tenacity of tribal custom
everywhere, especially as regards the amount of the wergelds, it is
difficult to conceive of his doing so.


VIII. RESULT OF THE KENTISH EVIDENCE.

We are now in a position to take a broader view of the wergelds,
Continental, Kentish, Wessex, and Mercian.

[Sidenote: The Kentish, Wessex, and Mercian wergelds thus brought into
line with the normal Continental wergeld of 200 and 160 gold solidi or
100 head of cattle.]

To the incidental mention of the fact that the Kentish freeman’s wergeld,
if 200 Kentish scillings, equalled the gold _Mina Italica_ may be added
the further incident that it was equal to 100 ‘sweetest cows’ of the
Alamannic laws. Whether accidental coincidences or not, these facts bring
us back to the point with which this inquiry started, viz. the widespread
normal wergeld of 100 head of cattle and its very general traditional
equation with a gold mina.

The main facts elicited as to the amount of the wergelds in the course of
this inquiry are these.

At the date of the Kentish Laws and generally during the seventh century
we find three wergelds in use in England for the freeman:--

  The Wessex wergeld of 6000 sceatts at 1:10 = 600 gold tremisses

   ”  Mercian   ”       4800    ”  { at 1:10 = 480   ”      ”
                                   { at 1:12 = 400   ”      ”

   ”  Kentish   ”       4000    ”    at 1:10 = 400   ”      ”

And on the Continent we find the two wergelds:--

  Frankish    200 solidi = 600 gold tremisses
  The other   160   ”    = 480   ”      ”

Now, in the fairly contemporary laws of the Ripuarian Franks, and of the
Burgundians, the traditional values of animals we have found to be stated
as follows:--

  Ox   2 solidi  =  6 gold tremisses
  Cow  1 solidus =  3   ”      ”

And in the nearly contemporary Alamannic laws the traditional values
were:--

  Best ox                     =  5 gold tremisses
  Medium ox and sweetest cow  =  4   ”      ”

[Sidenote: The differences covered by ratio between gold and silver 1:10
and 1:12.]

Within the range of these variations in the ratio between gold and
silver, and in the local value of animals, there seems to be ample room
and reason for the variations in the money values of the wergelds.

(1) 100 oxen of 6 tremisses (_i.e._ 600 tremisses) equal the Frankish
wergeld of 200 gold solidi, and at 1:10 the Wessex wergeld of 6000
sceatts.

(2) A long hundred of 120 cows of 4 tremisses (_i.e._ 480 tremisses)
would equal the wergeld of 160 gold solidi, and at 1:10 the Mercian
wergeld of 4800 sceatts.

(3) 100 cows at 4 tremisses (_i.e._ 400 tremisses) make the Kentish
wergeld of (if we are right) 200 Kentish scillings of 2 tremisses, and
at 1:10, 4000 sceatts. If we change the ratio to 1:12, then a Kentish
wergeld of 100 cows of 4 tremisses would in silver equal the Mercian
wergeld of 4800 sceatts. In other words, the difference between the
Kentish and Mercian wergeld may be explained, either as one between 100
and 120 cows, or, the number of cows remaining at 100, between the ratios
of 1:10 and 1:12.

There is thus in these fairly contemporary values of Western Europe,
in the seventh century, or within the Merovingian period, so obviously
room for the variations in the wergelds that, whether as to origin the
differences may be of historical interest or not, at any rate for our
present purpose we are fairly warned by the general coincidence in the
wergelds not to make too much of the differences.

[Sidenote: Kentish freeman and the twelve-hyndeman = Continental
_freeman_.]

The Kentish laws, therefore, lead us with some confidence to recognise
the practical identity of the wergeld of the Kentish freeman with that,
not of the Wessex ceorl, but of the twelve-hyndeman.

We have been led cautiously step by step to this result, and, whether
the problem raised by it be capable of solution or not, it is important
that it should be fairly stated and considered. Even if the Kentish
freeman’s wergeld was only 100 Kentish scillings, it would more nearly
correspond with the six-hyndeman’s wergeld than with that of the Wessex
ceorl. On the other hand, the wergelds of the Kentish læts are very
fairly on a level with that of the Wessex ceorl. Taking an average
between the second and third class of læts the correspondence would be
exact.[319]

[Sidenote: Kentish læt and the twy-hyndeman = the Continental _freedman_.]

If, therefore, the wergeld of the Kentish freeman may be regarded as
practically equivalent to that of the Continental _liber_ or _ingenuus_
on the one hand, and to that of the twelve-hyndeman of the Anglo-Saxon
laws on the other hand, and if that of the Kentish læt was like that of
the Norse leysing and of the twy-hyndeman, then once more it becomes
natural and right, and in accordance with ancient custom, that in
the Compact between Alfred and Guthrum the twelve-hyndeman should be
made ‘equally dear’ with the Norse hauld, and so with the _liber_ or
_ingenuus_ of the Continental laws, while the twy-hyndeman should be held
‘equally dear’ with the Danish leysing.




[Illustration]




CHAPTER XV.

_GENERAL CONCLUSIONS._


[Sidenote: Bearing of the results upon the division of classes and the
character of holdings.]

Before concluding this Essay it may be well in a final chapter to
consider its results in their bearing upon the conditions of early
Anglo-Saxon society, and especially with regard to the division of
classes and the character of the holdings.

The object has been to approach these difficult questions from the point
of view of tribal custom.

[Sidenote: The amount of wergelds the main clue.]

The main clue to an understanding of the division of classes has been the
amount of the wergelds.

[Sidenote: The general correspondence in wergelds throughout Western
Europe.]

The trouble taken to arrive at a correct knowledge of the currencies
in which the wergelds were paid, tedious as it may have seemed to the
reader, will not have been thrown away if it has led to the recognition
of the fact that there was a very general correspondence in the amount
of the wergelds tenaciously adhered to by the tribes of Western Europe,
whether remaining in their old homes or settled in newly conquered
countries. The amount of the wergelds was not seemingly a matter of race.
Cymric and German customs were singularly similar.

If the Irish eric fine formed an exception, Irish tribal custom
nevertheless had many things in common with Cymric and German custom in
other respects.

[Sidenote: The solidarity of the kindred connected with family holdings.]

It was from a study of the wergelds and the rights and liability of
relatives in their receipt and payment that some idea was gained of the
solidarity of the kindred under tribal custom. And this solidarity of the
kindred was found to be closely connected with the family character of
tribal land-holdings, of which the Cymric gwely was a typical example.
Where direct evidence of this family element was wanting the liability of
the kindred for the wergeld remained as an indication that it once had
existed.

[Sidenote: The normal wergeld of 200 gold solidi or 100 head of cattle.]

In reviewing the evidence of these matters and attempting to bring the
results to a focus, we begin with the fact that with comparatively
few exceptions the normal wergeld of the full or typical freeman
was everywhere so large--200 gold solidi, the heavy mina of gold,
traditionally representing 100 head of cattle. This wergeld was too large
by far for the individual slayer to pay, and possible only as a payment
from one group of kindred to another.

[Sidenote: The Anglo-Saxon wergelds brought with them into Britain.]

We have seen reason to infer from the Kentish, Wessex, and Mercian
wergelds that the Anglo-Saxon tribes shared in these traditions, and,
so to speak, brought their wergelds with them into Britain. And we have
found that Anglo-Saxon custom as regards the wergelds was substantially
similar to that of the Continental tribes.

[Sidenote: No feud or wergeld within the kindred.]

From Beowulf we learned that, as there could be no feud within the
kindred, a homicide within the kindred could not be avenged or compounded
for. There was no galanas or wergeld in such a case under either Cymric
or German custom, and evidence was found in the so-called Laws of Henry
I. that it had been so also under Anglo-Saxon custom. Up to the time of
the Norman Conquest the punishment of parricide was practically left by
the laws to the spiritual jurisdiction of the Church (_supra_, p. 335).

[Sidenote: Wergelds paid and received by paternal and maternal relations.]

The principle which required both paternal and maternal relations to
join in the payment and receipt of wergelds, and nearly always in the
proportion of two thirds and one third, was also common to Cymric and
German tribes. This principle depended upon a view of marriage likewise
common to both. A blood relationship was established as regards children
of a marriage, while husband and wife for many purposes remained in their
own kindreds. There being no blood relationship between husband and wife,
the husband’s kindred alone were liable for his crimes and the wife’s
alone for her crimes, and neither the husband nor the wife received any
portion of the other’s wergeld or was liable for his or her homicides.
Such was the custom under the Cymric codes and the laws of the Bretts and
Scots, and Anglo-Saxon custom as described in the so-called Laws of Henry
I. was similar.

[Sidenote: The half wergeld of strangers in blood.]

The tribal feeling which allowed tribesmen and strangers to live side by
side under their own laws, and made the Salic and Ripuarian Franks award
a full wergeld to tribesmen of allied German tribes, while it gave only
a half wergeld to the Gallo-Roman possessor who was not of their blood,
was, it would seem, brought with the invading tribes into Britain.

Danish and English tribesmen were allowed to live side by side under
their own laws and acknowledged as ‘equally dear,’ with a similar
wergeld, while, at all events in the cases which come under notice,
complete strangers in blood were awarded only a half wergeld as in the
Continental laws.

We have not attempted to settle the question how far there was a
Romano-British population left in the towns, but we have found incidental
traces and hints that in Northumbria, Wessex, and Mercia there were
‘wilisc’ men--Welsh or British--who had only a half wergeld, being
treated as strangers both in this respect and also as regards the
substitution of the ordeal for the oaths of kindred (p. 403).

[Sidenote: The ordeal the alternative to the oaths of kinsmen.]

The principle that a man who could not bring to his protection the oath
of his kinsmen must be brought to the ordeal was one of widely extended
tribal custom. And it was emphasised by the adoption of the ordeal as a
Christian ceremony solemnly performed in the churches under both Frankish
and Anglo-Saxon law.

[Sidenote: The man of no kindred becomes a dependent on some one else’s
land.]

There can be little doubt that in the solidarity of the kindred under
tribal custom we have to do with the strongest instinct which everywhere
moulded tribal society. So far as it had its way and was not confronted
by more potent forces it must have almost necessarily ruled such matters
as the division of classes, the occupation of land, and the modes of
settlement.

When we inquire into the grades of society under tribal custom they seem
everywhere to have their roots in the principles of blood relationship. A
man who has no kindred to protect him needs and seeks the protection of a
chieftain or lord. By the force of tribal gravitation he sinks into the
dependent condition of living upon another’s land.

Whether he be a freedman who has risen from the rank of the theow or
thrall, or a free tribesman of low position, or one of a conquered
race, or a stranger immigrant, and whether he be cottier or the holder
of the typical yardland, until in the course of generations a kindred
has grown up around him, he remains in the dependent condition. He is
indeed a freeman as compared with the theow or thrall, but when Alfred
and Guthrum make their compact and agree that Dane and English shall be
reckoned as equally dear at the normal wergeld of the full freeman it is
not of the dependent class they are thinking. They give to this class and
to the Danish leysing or newly made freedman a twy-hynde instead of a
twelve-hynde wergeld.

[Sidenote: The twy-hynde class was the dependent class of gafolgeldas,
with a lower wergeld.]

It might at first sight be supposed that this twy-hynde condition of the
dependent class in England, so far as it may have included Anglo-Saxons,
must have been the result of degradation in social status between the
first settlements and the time of King Alfred, but we have sought in
vain for evidence of an earlier higher position in the Laws of King Ine.
And, on the whole, even when regarded solely from a tribal point of
view, it does not seem unlikely that strangers in blood and freedmen and
dependent followers of the conquering chieftains should find themselves
after conquest and settlement in the economic condition of tenants and
gafolgeldas on the lands of protecting lords. Nor would it be strange
that, when in a new country and under other influences this uniform
dependent economic condition had once become a general fact, the whole
class, in spite of variety of origins, should find itself marked by a
twy-hynde wergeld.

[Sidenote: The twy-hynde class were equated.]

It does not follow, however, that because in the compact between Alfred
and Guthrum the twy-hynde class were reckoned as equally dear with the
Norse leysing that the Anglo-Saxon ‘ceorl who sits on gafol-land’ was
generally in as low a social position as the Norse newly made freedman.
It is enough that according to the evidence, he was a dependent tenant,
let us say, under the lordship of a twelve-hynde man or if settled upon
royal demesne of some gesith or official of the king.

[Sidenote: With the Norse leysing.]

Still it may be well to look once again at the position of the Norse
leysing, because, after all, it is with the leysing that the Anglo-Saxon
twy-hynde gafolgelda was equated in a compact made after King Alfred’s
victory, and so when the two chieftains seemed to be treating on equal
terms. Surely King Alfred was not intending to degrade the Anglo-Saxon
dependent class. Presumably he was making a good bargain for them.

[Sidenote: The low condition of the leysing.]

The early Norse laws were settled long after the date of this compact,
upon the conversion of South Norway, and, as in other cases, they were
framed with the express purpose of making room in the legal system for
the Christian Church and so in some sense with its sanction. And yet so
deep was the gulf between classes even then that a certain portion of
the churchyard was set apart for leysings, and in no case were they to
be buried in the portion reserved for classes above them. And if after
giving his freedom-ale and so attaining the first step in freedom and
independence the leysing should die leaving destitute children whose
support ought not to be thrown back upon his lord, we have seen that the
way out of the difficulty was to dig a grave in the churchyard into which
the leysing’s children were to be placed and left to starve to death,
the last survivor being the only one which the lord thenceforth had to
maintain.[320] This was the position of the leysing at the bottom of the
ladder of freedom.

[Sidenote: But he rose by steps as a kindred grew around him.]

But we found the leysing of the Norse laws rising by steps into greater
freedom and better social position. And the process throughout was
founded upon the gradual growth of kindred. It was the lack of kindred to
swear for them and defend them which placed them low in the social scale,
and it was the gradual growth of kindred generation after generation
which marked the steps of their rise into better social position with
higher wergelds.

[Sidenote: In England it was so once, but the rungs of the ladder drop
out.]

When we turn to the Anglo-Saxon laws we seem to detect similar tribal
principles originally at work but with differences which may very
probably be referred to the circumstances attendant upon conquest and
settlement in Britain.

The law of tribal gravitation here as elsewhere, aided, no doubt, by
other potent forces, had been at work placing the man with an imperfect
kindred in a dependent position at the bottom of the social ladder.

And it is important to note that at first the middle rungs of the ladder
by which a man could climb out of the dependent position seem to have
been present here as in Norway. The evidence is scanty, but sufficiently
important.

From the Kentish laws the presence of stepping-stones into greater
freedom may be inferred in the case of the three classes of _læts_ with
their rising wergelds. And in a precious fragment of ancient custom
happily rescued from oblivion we found evidence that, originally at all
events, there had been a way out of the ceorl’s twy-hynde condition at
the fourth generation of landholding connected with payment of gafol to
the king’s utware and direct service to the king. But we recognised that
the collector of the fragment looked longingly back to ancient custom,
speaking of it in the past tense, as if it was no longer in force.[321]

It would obviously not be wise to trust solely to the negative evidence
of the silence of the laws, but in this case the silence seems to confirm
the evidence of the fragment. For the pathetic tone of the fragment finds
an echo in the fact that all traces of the middle rungs in the ladder
seem to have vanished from the later laws. There is no mention in Ine’s
laws or in Alfred’s of there being or having been several grades of
freedmen or læts. Even the half wergeld of the six-hynde stranger who
has risen to the possession of five hides silently disappears after King
Alfred’s time. From whatever cause, so far as the evidence goes, the
twy-hynde class seems to have become a homogeneous class in which, in
spite of different origins, distinctions were merged in a common economic
condition. Differences of origin were perhaps forgotten as the result of
comradeship in the long struggle against the Danish foe.

[Sidenote: And this kept open the gulf between twy-hynde and twelve-hynde
classes.]

We thus seem to be driven to recognise the width and to some extent the
bridgelessness, already in King Alfred’s time if not in King Ine’s, of
the gulf between the position of the twelve-hynde landed class and that
of the twy-hynde dependent class of gafolgeldas and geburs who were
tenants on their land.

It seems probable that, though technically and really free in the sense
of not being thralls, the twy-hynde class, broadly speaking, may have
found themselves very early, if not from the first, placed in an economic
condition of service and servitude, including work as well as gafol,
which by the ultimate disappearance of the middle rungs of the ladder
might very easily slide into what is loosely called the ‘serfdom’ of
later times.

In the meantime we realise that the abjectness of this semi-servile
condition may be very easily exaggerated by modern associations with the
terms ‘service’ and ‘serfdom.’

It is when we turn from the twy-hynde class to the position of the class
above them, of gesithcund and twelve-hynde men, that we learn that a
part at least of the risk of misunderstanding may lie in the difference
between the tribal notion of service and freedom and the more modern one.

[Sidenote: Position and services of the twelve-hynde class.]

What, then, has tribal custom to teach us as to the position and services
of the twelve-hynde class?

[Sidenote: On a level with the Norse odalman.]

Reverting once more to the compact between Alfred and Guthrum, Dane
and English are to be equally dear at eight half-marks of gold. The
Englishman, without any limiting adjective, is the twelve-hynde man. And
he is put on a level with the Danish typical free landholder, the hauld
or odalman of the Norse laws, whose wergeld under Norse law was that
of the typical freeman everywhere--equivalent to the normal wergeld of
200 gold solidi, the mina of gold, the traditional wergeld of 100 head
of cattle. It was six times that of the Norse leysing, just as the
twelve-hyndeman’s wergeld in England was six times that of the ‘ceorl who
sits on gafol land.’

The English twelve-hynde man is therefore put on a level with the Norse
odaller or typical landholder. And so, as we have seen, the ceorl who
rose by the middle rungs of the ladder into the twelve-hynde position
had _inter alia_ to become a landholder of 5 hides, and his family
became gesithcund only after the landholding had continued to the fourth
generation. His great-grandchildren then became gesithcund with a
twelve-hynde wergeld.

[Sidenote: Twelve-hynde men were landholders.]

The twelve-hyndemen were therefore landholders, surrounded, in principle
at least if not always in practice, by a kindred. But what kind of a
landholding was it?

[Sidenote: Position of the first settlers.]

Approaching the question strictly from a tribal point of view, the
solidarity of the kindred involved in the payment and receipt of wergelds
would certainly suggest that those who had a right to receive and the
obligation to pay held a position in their kindred quite different from
that of the modern individual owner of land.

The analogy of Welsh and Irish and Salic and Norse and Scanian tribal
custom would lead us to infer that the Anglo-Saxon settlers in England
must have brought with them traditions of tribal or family ownership more
or less of the type of the Cymric gwely, though doubtless modified by
emigration and settlement in a new country.

[Sidenote: Separation from their kindreds threw them on the protection of
the king.]

After all that has been said, traditions and perhaps actual examples of
the individual ownership of the ‘Romanus possessor,’ and, still more
likely, actual experience of the Roman type of landed estates, may have
survived in Britain from the period of the Roman occupation, and the
Anglo-Saxon settlers may easily have been influenced in the matter of
landholding by what as conquerors they came to supplant. But they can
hardly have wholly cast off their own tribal traditions and instincts.
The continued payment and receipt of wergelds show that they did not.
Even, to take an extreme case, if they came to Britain as single settlers
having left their kinsmen behind them, still kindreds would gradually
grow up around their descendants in the new country. And tribal custom
left to itself would give to them landed rights, quite different from
those of the individual owner. But the interval, apart from other outside
influences, may well have subjected tribal custom to a strain.

From the point of view of this interval it may not be unreasonable to
revert to the clauses of King Alfred’s laws on ‘kinless men’ and the
Norman precedent, that the king was to take the place of the missing
maternal kindred and of advocate for a Norman if he had no other.[322]

Unless, therefore, the twelve-hynde settler was surrounded by a full
kindred in the new country, he must, according to his own tribal custom,
have found himself much more of an individual than he was used to be, and
therefore more dependent upon the protection of his chieftain or king.

We must not, on the one hand, conceive of the twelve-hynde settler
as having all at once adopted the independent position of the Roman
‘possessor,’ though circumstances may have sometimes severed him as
completely from his ‘parentilla’ as the ceremony of the Salic law.
Nor can we, on the other hand, conceive of him always as a tribesman
surrounded by his kindred. He may evidently, on the one hand, be released
from many of the trammels involved in membership of a kindred, but, on
the other hand, he is thrown more than ever under conditions of service
to the king.

[Sidenote: Service under tribal custom not degrading. But the ties of
kindred involved restraint on individual action.]

Let us for a moment revert to the tribal conception of these trammels and
services. They did not always involve degradation of social condition.
They often, as we have seen, were the mark of the attainment of a higher
position.

[Sidenote: The Norse odalman a sharer in the odal, with duties to his
kindred.]

The kindred of the aillts or strangers who settled upon a chieftain’s
land under Cymric custom was acknowledged in the fourth generation of
continued occupation, but at the moment a kindred was acknowledged its
members became _adscripti glebæ_. When the Irish fuidhir did the same
his descendants of the fourth generation found themselves not only
bound to the land, but also bound together by something like the rules
of the Cymric gwely, so that one of them could not sell or charge his
share without the consent of the others. We found the same thing in
Norway, where the rules for payment of the wergelds by relations were
more elaborate than anywhere else, and where the growth of kindred seems
so completely to have ruled the rise from one social grade to another,
till at last a man whose great-grandfather’s great-grandfather was a
freeborn landholder became an odaller. If at first sight we were to
picture the odalman to ourselves as an individual freeholder of Roman
or modern type we should soon find out our mistake when we learned that
if he wanted to sell his odal he must first _consult his odal-sharers_.
When examined closely the fact became evident that it was the _group of
kindred_ that by long settlement on the land had become odal, and that
the shares of individuals in the odal were subject--with, of course, many
differences--to some such tribal customs as those of the Cymric gwely.
The odalman was thus not a single isolated landowner. He was surrounded
by kindred odal like himself, reciprocally bound to fight for one another
and swear for one another, and to share in the payment or receipt of one
another’s wergeld. The odalman was protected by his kindred, but his
freedom of individual action was restricted by it.

[Sidenote: The Salic alod a family holding.]

So also under Salic law the joint inheritors of the alod on _terra
Salica_, with right of redivision between great-grandchildren _per
capita_, were in the same way trammelled, and when by a solemn public
form they released themselves from their obligations to their kindred
they relinquished also all rights of inheritance and protection (p. 134).

Are we to consider these Continental analogies to be without relevance to
Anglo-Saxon landholding?

Dr. Konrad von Maurer, in those masterly papers contributed in 1855 to
the ‘Kritische Ueberschau’ which are still so valuable, rightly lays
stress upon the power of the _kindred_ as the great rival of the power of
the _state_ in the development of Anglo-Saxon polity. We find but little
direct allusion to the kindred in the laws, it is true. But incidentally
and as it were by accident we have learned from passages mentioned in
their proper place that so late as the time of Athelstan there were
kindreds both twelve-hynde and twy-hynde powerful enough to defy the
King’s peace.[323]

This is in itself a significant reminder that more or less of tribal
custom remained in force behind the screen of the laws from which most
of our evidence has been taken. And yet we seem to be almost forced to
the conclusion that if we try to realise the position of the twelve-hynde
settler we must regard him, at all events for the first few generations,
as in a very different position from that of the Norse odalman in the
old country. Even though as head of his family he may have brought
descendants and dependents with him, he could not in the new country
be at once surrounded by kinsmen and odal-sharers who with himself had
hereditary rights in the land.

[Sidenote: Anglo-Saxon twelve-hynde settler pays gafol and service direct
to the king.]

We thus come round again to the point that so far as he may have been
separated from his kindred the first Anglo-Saxon settler must have found
himself thrown upon the protection of his chief and into a position of
individual service. He becomes, as we have seen according to the scanty
evidence of the Laws of Ine, a king’s gesith, with military and judicial
and administrative duties to discharge, put into a post of service which
he cannot relinquish at pleasure. Service to the king has to some extent
taken the place of the restraints of kindred, and so in a sense, like
the twy-hynde man, he has become a gafolgelda, but paying his gafol and
services direct to the king, and _adscriptus glebæ_, but tied to an
estate and an official position instead of to a yardland.

This view of the position of the gesithcund and twelve-hynde class rests
very much upon the incidental evidence of the Dooms of Ine, but the truth
of it is confirmed by the independent evidence of the precious fragment
already referred to. For its interesting evidence shows that, in addition
to his holding of five hides of land, it was precisely into this position
of gafol-paying and service _direct to the king_ that the ceorl of
ancient custom had to climb in order to earn the gesithcund status and
the twelve-hynde wergeld.

Thus we arrive at a definite and practical mark distinguishing
ultimately, and perhaps more or less from the first, the twelve-hynde and
twy-hynde classes.

The twelve-hynde or landed class paid gafol and did service direct to
the king. The twy-hynde or dependent class paid gafol and did service to
the landed class, who from this point of view were middlemen between the
twy-hynde gafolgelda and the king.

[Sidenote: The holding direct from the king easily becomes a manor.]

We seem, therefore, thus early to arrive at something analogous to
Professor Maitland’s technical definition of the Manor as the fiscal
unit from which gafol is paid direct to the king, while its lord is
the receiver of the payments and services of its tenants. The single
landholder who is not under a manorial lord in the Domesday survey is
said to hold ‘as for a manor’--though he may have no tenants.

[Sidenote: Tribal character of the manor as a judicial unit.]

It may be worth while in this connection to allude to another general
feature of the manorial estate on both sides of the Channel which if not
directly of tribal origin must at least have worked in close sympathy
with tribal custom.

The gesithcund man officially charged with the control of a district or
estate easily became in a manorial sense lord of the dependent tenants
upon it. And the judicial and magisterial adjunct to the lordship became
a prevalent feature of the typical manor.

We have seen that the ‘sac and soc’ of later times may have grown from
the root of the tribal principle involved in the sacredness of the
precinct or area of protection of the chieftain and, in degree, of every
grade of tribesman who possessed a homestead. How large a place this
principle occupied is shown by the prominence of the _fredus_ in Frankish
law and of the _mundbyrd_ in the early Anglo-Saxon laws. The manor was a
complex product of many factors, and tribal custom was certainly one of
them.

[Sidenote: Was it a family holding?]

Once again, what kind of a holding was that of the twelve-hyndeman? Was
it a family holding, and what were the rules of succession?

[Sidenote: Place names in favour of its being sometimes a family holding.]

Unfortunately, we do not know how far the immigrants came in kindreds
and families or as followers and ‘gesiths’ of military chieftains. But,
in any case, if we may take the evidence of place-names the great number
of patronymic names of places would lead to the supposition that the
holdings were family holdings. The _ham_ may at first have been the
estate of a gesithcund man held direct of the king with gafolgeldas and
geburs under him holding yardlands and doing work on his demesne. But
when it becomes an _ingham_ the patronymic termination points to the
lordship of the manor having been held, as time went on, jointly, in
somewhat the same way as the Cymric chieftainship in the gwely. His sons
and grandsons and great-grandsons may really have had their rights of
maintenance all along, and ultimately, if they were allowed to do so,
they may have sometimes divided the inheritance instead of continuing to
hold it jointly. Tribal instincts working alone would probably follow
some such line as this.

But it is easy to see that the nearer the holding of the twelve-hyndeman
approached to a benefice or office the stronger would be the tendency
towards single succession instead of divisions among heirs.

During the century or two after the first settlement there was time, no
doubt, for the growth of kindreds, and the thane in the king’s service
would soon become the head of a family group; but, on the other hand,
many influences were at work undermining the solidarity of the kindred
and strengthening the manorial element. Tribal instincts die hard. But
probably there never was full opportunity for the growth upon English
soil of anything like the solidarity in landholding of the Norse kindreds
of odal sharers tracing back their family possession for four or five
generations.

[Sidenote: Folk-land may have devolved under tribal custom.]

There is but little evidence on the rights or rules of succession to be
found in the laws. And the silence is suggestive of the continuance of
custom. Even the diplomatic evidence of wills and charters is so much
restricted to boc-land that it perhaps throws a shadow rather than direct
light upon the ordinary devolution of land which had not become the
subject of the Romanised rules of ownership, conveyance and testamentary
disposition.

But if Professor Vinogradoff is right in his view that folk-land was
that land which was still held under ancient custom, then for anything
we know, in spite of documentary silence, folk-land may still have been
held more or less as family rather than individual property even in later
times.

If the suggested analogy between the _terra Salica_ of the Salic laws
and the _folk-land_ of Anglo-Saxon documents could be proved, the family
character of the holdings in both cases would receive confirmation.
At the same time the frequent concurrence of relatives in Anglo-Saxon
dispositions of land and the common form of deprecation of future
interference on their part would at least be consistent with the
supposition.

[Sidenote: But feudal principles would tend towards single succession
outwardly.]

That as time went on the growing force of feudal principles would demand
single succession to landed estates whenever they could be regarded as
benefices is what might be expected. And it is worth noting that under
later feudal custom, by a kind of compromise, what was really a family
holding was often artificially moulded for practical purposes into a
single holding with apparent single succession.

[Sidenote: A single holding may cover internal family divisions.]

In the Domesday survey are many instances in which thanes or soldiers
here and there hold manors or fractions of manors ‘pariter’ or ‘in
paragio.’ And when the feudal tenancy ‘in parage’ is examined in its
fully developed form on the Continent, it is found to present many
resemblances to what under Cymric custom the family holding of a tribal
chief of kindred might be if the chief alone were regarded as the landed
person doing homage to the superior lord for all his kindred and if, in
the next stage, when the gwely was internally divided between brothers,
one of them only did homage for the rest. There were indeed in tribal
custom as to the chieftainship and the constitution of the gwely traits
which easily allowed themselves to be developed on feudal lines. For the
present purpose, however, the point seems to be that within what looks
from the outside like a single individual landholding there may have been
internal family divisions which are not apparent.

Passing now from what may be regarded as the holdings of the twelve-hynde
class, more or less tending to resemble manorial estates, to the
yardlands of the twy-hynde class, room may perhaps be found even in their
case for the exceptional continuance of the family element in spite of
the apparent single succession.

[Sidenote: Kentish family holdings.]

The Kentish holdings in sulungs and yokes instead of in hides and
yardlands seem to go back to the earliest Kentish records. The fact that,
in spite of the difference in date between the evidence of the earliest
charters and that of the Domesday survey and the surveys in the Battle
Abbey records and the ‘Black Book of St. Augustine,’ the holdings seem
to have been throughout in sulungs and yokes points to continuity. And
when these sulungs and yokes in the surveys are found to be very often
held by ‘the _heredes_ of so and so,’ or ‘so and so and his _pares_,’ it
seems fair to suggest that in these Kentish holdings there may have been
a survival of family ownership.

Whether it were so or not, this later Kentish evidence shows at least
that the continuance of family holdings was not necessarily inconsistent
with external uniformity in the sulungs and yokes of the open-field
system in Kent. And if so, why may not the same thing be true in
exceptional cases of the hides and yardlands of Wessex and Mercia?

Contrary principles have a strange way in practice of finding a _modus
vivendi_ till one of them at last overrides the other.

[Sidenote: Gavelkind holdings were family holdings.]

It will be remembered that one of the complaints of the existence of
kindreds powerful enough to defy the king’s peace in King Athelstan’s
time came from Kent. And if these facts may be taken as evidence that the
solidarity of kindreds had been better preserved in Kent than elsewhere
some tribal light might perhaps be thrown upon the survival of the custom
of gavelkind in Kent.

It is not a matter upon which we must dwell, but evidently the gavelkind
tenure must have been something different from the prevalent tenures
of other districts. The difference cannot have been the equal division
of the sulungs and yokes between sons as contrasted with the single
succession to the yardlands of other districts, because the sulungs and
yokes were apparently not interfered with by the gavelkind division
among heirs. And when the right of the youngest son under the custom of
gavelkind to succeed to the parental hearth is compared with the similar
right of the youngest son in the case of the Cymric gwely the inference
becomes very strong that the gavelkind holdings were family holdings and
the gavelkind divisions internal divisions within the family, like those
of the Cymric gwely, not necessarily interfering with the permanence
of the sulungs and yokes of the open-field system of which the family
holdings were composed or in which the family had rights.

The surveys of Kentish manors in the records of Battle Abbey and the
‘Black Book of St. Augustine’ present instances sometimes of sulungs and
yokes held by the _heredes_ of a deceased person and sometimes of others
which maintain their unity for purposes of payments and services although
in the possession of several holders. The sulung in these cases seems to
have continued to be the unit liable for the fixed ploughing and other
services irrespective of the question who were its occupants.[324]

Once more perhaps some light may be gained from Cymric tribal custom.

[Sidenote: Analogy of the Cymric trefgordd.]

We have learned from the Cymric evidence that a district might be divided
for purposes of revenue and food rents into sub-districts, irrespective
of who might be the occupants. And we have seen also how the Cymric
trefgordd or unit of pastoral occupation, with its one plough and one
churn and one herd of cattle under a single herdsman, could remain a
permanent taxable unit paying the tunc pound in lieu of food rents,
whoever might at the time be its occupants and have cattle in the herd.
Within the lines of tribal custom itself the members of a Cymric gwely
might be spread over a district and their cattle distributed among many
trefgordds, while from the chieftain’s point of view the local units of
taxation were uniform and regular.

[Sidenote: But the yardlands were mostly holdings with single succession
on payment of a relief to the lord.]

But this must not blind our eyes to the fact that the yardlands on
Anglo-Saxon estates were, so far as we can see, for the most part really
individual holdings with actual single succession. However hard tribal
custom may have fought for the family element, the manorial element in
the end seems to have prevailed on most manors so as to secure, for the
purposes of the lordship and the convenience of manorial management,
single succession to the yardlands. The fact that as early as King Ine’s
time we see new individual holdings of geburs being made by the allotment
of yardlands and homesteads to individual tenants in return for gafol and
work, when taken in connection with the ‘Rectitudines’ brings us back
to the likeness of these holdings to the holdings of the _villani_ of
later times. We see in the allotment of stock to the gebur, of which we
trace scattered evidence, the fact on which the principle of the later
villenage was based. Only when both homestead and yardland came from
the lord was there to be work as well as gafol under King Ine’s laws.
The stock of the holding according to the ‘Rectitudines’ belonged in
theory to the lord and upon the tenant’s death returned to the lord. The
continuance to another tenant on the payment of a relief involved the
admission that the holding and its outfit were a loan from the lord.

[Sidenote: The manorial element must not be lost sight of.]

The fact that in exceptional cases family holdings were able to maintain
their own under manorial management must not be allowed to lead us to
underrate the power of the manorial element. There were in tribal custom
itself as described by Tacitus elements of what we have elsewhere spoken
of as the embryo manor, but this must not blind our eyes to the fact that
something more was required to produce the general uniformity of holdings
and single succession upon manorial estates than tribal custom working
alone.

If from a tribal point of view we try to understand the growth of
manorial serfdom and see how on the Continent it was seemingly the
result of the combination of two leading factors, tribal custom and
Roman methods of land management, it becomes hardly possible to ignore
the presence of something like the same combination of two interacting
factors on British or English ground.

With the manorial side of serfdom in its connection with the widely
prevalent open field system we have already attempted to deal in a former
volume. That there may have been some continuity and continuance of
estates managed on the Roman system can hardly be denied. However far
the policy of extermination of the old inhabitants was carried, it never
extended over the whole area. And the whole of Britain was not conquered
in the same century. Even if the continuity of estates in Britain should
be considered to have been entirely broken by the Anglo-Saxon invasions
(which is hardly conceivable), it must be admitted that continuity and
likeness between England and the Continent as to land management was very
soon restored on monastic and other ecclesiastical estates, and perhaps
also upon what was Royal domain. Nor can it be doubted that herein was a
force greatly strengthening the manorial element.

[Sidenote: Tribal custom only would not meet the whole case.]

If we limit our view to the tribal side only of the problem, we recognise
that in Scandinavia and in the Cymric districts of our own island and in
Ireland tribal principles working alone tended powerfully, without help
from the Roman side, to produce a class of tenants becoming _adscripti
glebæ_ after four generations of occupation, but it did not produce
either in Norway or in Wales or Ireland or in Celtic Scotland that
general and typical form of occupation in uniform yardlands or ‘huben’
so prevalent in England and Germany on manorial estates with ostensibly
single succession and services in so many points resembling those of the
Roman colonate.

Whether the manor was the indirect or direct successor of the Roman
Villa--_i.e._ whether the continuity was broken or not--the _manorial_
use of the open-field system of agriculture seems to be required to
produce the uniformity of holdings in yardlands and the single succession
which marked what is roughly called the serfdom of the manorial estate.

[Sidenote: The open-field system not of manorial origin.]

It is hardly necessary to repeat that the open-field system itself
was not of manorial origin. It was essentially an economic result and
differed very greatly in its forms. Its main object seems to have been
fairness and equality of occupation. Under tribal custom, in Wales, it
arose out of coaration of portions of the waste or pasture by the common
plough-team to which the tribesmen or the taeogs, as the case might
be, contributed oxen. The strips were day-works of the plough taken in
rotation by the contributors according to the place of their oxen in the
plough-team for the season, and they returned into common pasture when
the crop had been removed. The tribesman in the pastoral stage was the
owner of oxen but not of the strips ploughed by them. They were merged
again in the common pasture of the district in which he had rights of
grazing for his cattle. And the cattle, and not the corn crops, were the
main thing upon which the system turned.

Whatever method of distribution may have been followed, as arable farming
increased and the strips became more and more permanently arable, mostly
on the two-field or the three-field system, the area of unploughed land
was more and more restricted and the pasture over the stubbles and
fallows obviously became more and more essential. The cattle, on the
one hand, required the pasture on the stubbles and fallows, and the
land, before being ploughed again, required the manure arising from the
pasturing of the flocks and herds upon it.

Where open-field husbandry still subsists in Western Europe, whether on
this or the other side of the Channel, the owner of the strips has still
no right of grazing upon his own strips till upon the appointed day
when the common right begins of all the holders to graze their cattle
in a common herd or flock over the whole area. This right is known in
France as the ‘vaine pâture,’ and it is still the most important and
indestructible element in the open-field husbandry. In the great open
fields around Chartres a man may plant his strips with vines if he likes,
but to this day, if he does so, he must let the sheep of the commune
graze over them after a certain date, in exercise of the immemorial right
of the _vaine pâture_.

[Sidenote: But uniform holdings and single succession are marks of
manorial lordship.]

In all this no manorial element need be present, and when the manorial
element is absent there is not necessarily any uniformity or single
succession in the holdings. But when manorial management comes upon the
top of this widely extended and all but universal system of agriculture,
whether in Roman times or later, the bundle of scattered strips which
under tribal custom could be ploughed by a pair of oxen whether alone
or in joint ploughing is very naturally taken as the typical holding.
And thus when we find in the Laws of Ine and later records gafolgeldas
and geburs settled upon yardlands and doing service by week-work on the
lord’s demesne the natural inference must be that it is the result of
manorial land management and that there has come into existence already
something like a manor with something like a community in serfdom upon
it, using the prevalent open-field system as the shell in which it will
henceforth live so far as its agriculture is concerned.

And so it seems natural to attribute to the manorial management and the
manorial requirement of fixed services and dues the uniformity of the
holdings and the single succession by which the uniformity was preserved.
The power which seeks and makes uniformity seems to come from above.
Agricultural communities of free tribesmen who had become individual
freeholders (if such could be conceived of as prevalent in King Ine’s and
King Alfred’s time) would probably have used the open-field system in a
quite different way. And we see no trace of it in the evidence.

[Sidenote: Later evidence of free holdings may not be to the point.]

When, however, we have said this we have no disposition to ignore or
make light of the later evidence upon which great stress has quite
rightly been laid by Professor Maitland in his remarkable work on ‘The
Domesday Survey and beyond,’ showing that there were in some districts
villages, in which the manorial element was apparently absent in the time
of Edward the Confessor, though appearing as manors after the Conquest.
He has suggested that in these villages not only the manor in name but
also the manor as a thing was apparently non-existent. There was in
these cases apparently, in King Edward’s time, no demesne land upon
which the services of a tenantry in villenage could be rendered, and the
tenants were often sokemen who had individually put themselves under the
protection of this lord or that, instead of there being one lordship over
the group, as in a manor.

[Sidenote: The Danish wars left many estates vacant, which may have been
reconstructed on feudal rather than manorial lines.]

These lordless villages on the eve of the Conquest as shown by the
entries T. R. E. in the Domesday survey and especially in the ‘Inquisitio
Eliensis,’ merit more careful study than has yet been given to them, and
so far as they can be shown to prove the existence of free villages of
_liberi homines_ or _socmanni_, after the Conquest merged sometimes in
the class of _villani_, I am ready to welcome the evidence. But unless
they can be traced back to earlier times, their occurrence mostly in the
Danish districts interspersed with other villages which were manors
and had demesne land, together with the singular fact that the holders
in these villages were commended to several lords, suggests that their
peculiar position may date from the time of the Danish invasions, and
be the result of the devastations as to the effects of which the ‘Liber
Eliensis’ contains so much evidence. Many a manor may have lost both lord
and tenants, and have been filled up again by the great lords of the
district with new tenants--soldiers and servants who had served in the
wars, it may be. Thus these cases, in which many features of the ordinary
manor were apparently missing in the time of Edward the Confessor, may
be of recent date and so, while important when viewed in relation to
the Domesday survey and the changes made by the Conquest, not specially
instructive as regards earlier Anglo-Saxon conditions.

[Sidenote: The fact regarding the Danelaga still very little known.]

Unfortunately, as we have seen, the laws of the Danish period, while
recording existing and modified Anglo-Saxon customs on various points,
leave us in the dark as to Danish custom, whether of old standing in the
Danelaga or newly imported in King Cnut’s time. It was, no doubt, known
to the invaders, and it was enough for them to say ‘as the law stands,’
though we do not know what it was. The whole question of the Danelaga
was purposely omitted from the scope of my former volume, and now, after
twenty years, still remains a subject requiring careful examination by
future inquirers.

But this cannot be done completely until the minute work which Professor
Maitland and Mr. Round and Mr. Corbett are gradually doing upon the
Domesday survey itself in its local details has been further pursued, and
it lies, with so many other branches of a difficult subject, beyond the
limits of the inquiry made in this volume.

[Sidenote: New feudal tenures may have had a tribal root. St. Oswald’s
tenants for three successive lives.]

Reference may, however, be incidentally made to the numerous cases in
which, in order to describe the nature of the tenure of socmanni and
others under what were perhaps new conditions, the fact was recorded in
varying phrases whether this person or that could or could not leave or
sell his land. Of some it is stated ‘possunt recedere,’ of others ‘non
possunt recedere’--of some ‘possunt vendere,’ of others ‘non possunt
vendere.’ Though these tenures may have been comparatively modern and
may belong to a period of advanced feudal conditions, still it may be
possible that some trait of tribal custom may lurk at the root of the
distinction. From the manorial point of view, it was necessary to record
of the socmanni whether they had only limited rights in the land subject
to the performance of services and ‘consuetudines’ (which, by the way,
seem to have been very much like those of the villani) or whether they
were permanent freeholders who could sell their holdings and leave the
land when they liked.[325] The position of the tenants in this respect
was probably dependent upon the tenure under which they held, _i.e._ upon
whether they were tenants with only life interests, or for successive
lives, or, as we should say, tenants in fee. After the devastations
of war many new tenants must have been put upon desolated manors, and
Professor Maitland has very rightly laid stress in another connection on
the traditional habit of granting leases for three lives only, so that a
holding might ultimately return to the lord. He has pointed out that when
Bishop Oswald (A.D. 962-992), exercising manorial rights over the great
domain of the Church of Worcester made these leases to thanes on certain
services for three successive lives (_i.e._ for the lives of father, son,
and grandson) he did it expressly for the purpose of securing to his
successor full power to renew them or not.[326] And from a tribal point
of view it may be a pertinent question whether the restriction to the
three generations had not some indirect connection with the tribal custom
or instinct, so often alluded to, which gave to the fourth generation of
uninterrupted occupation fixity of tenure and status.

[Sidenote: Tribal custom known to Danes and Normans.]

Recurring to the scattered cases of thanes holding ‘in paragio’ and by no
means confined to the Danish districts,[327] it was necessary to state in
the Domesday records, as in the case of the socmanni, whether they had or
had not power to leave or to sell, and it may be useful that we should be
reminded by these cases, in which feudal custom had possibly arisen out
of tribal custom, that tribal custom was not unknown to the Danish and
Norman conquerors of England. The Danish immigrants came from a district
in which tribal custom was still fresh and vigorous. The Normans too, as
is shown by the so-called Laws of Henry I., found Anglo-Saxon custom by
no means altogether alien to their own instincts.

Before concluding this essay perhaps a further observation should be made.

We have learned in the course of this inquiry that it does not do to
take too insular a view of Anglo-Saxon conditions. The similarity of
wergelds, and indeed of tribal custom generally, has throughout become
very apparent. But perhaps it is hardly more striking than the similarity
in the _modifications_ of tribal custom found in the laws on both sides
of the Channel.

In their migrations and conquests the conquering tribes found themselves
everywhere breathing a moral atmosphere in which it was difficult for the
old tribal instincts to live. In such matters as the responsibility of
a master for his slave’s homicides and of relatives for their kinsman’s
crimes we have watched as it were modifications of tribal custom in the
course of being made, here and there, on almost identical lines. May it
not have been so also in regard to the important matter of the division
of classes?

[Sidenote: Romanising and Christian influences apart from the manor.]

If we have recognised rightly the tribal principles originally at the
root of the distinction between the twelve-hynde and twy-hynde classes
there is no reason why we should not recognise also that besides the
potent force of manorial management there may have been other influences
at work widening the gulf between the two classes, and, so to speak,
reducing to a level the members of each class by breaking away the rungs
of the ladder between them.

It must not be overlooked that in the earliest Continental laws most
nearly contemporary with those of Kent--Alamannic, Bavarian, Burgundian,
and Wisigothic--the divisions of society have a very artificial look,
as though largely based upon wealth rather than the tribal principles of
kindred.

Now, German writers are not agreed upon the point whether these
artificial divisions found in these earliest of the laws ought to be
regarded as belonging to ancient German custom or whether they may not
rather be traced to Roman influences.[328]

[Sidenote: The earliest laws most influenced by Roman traditions.]

We have already seen how necessary it is in connection with these early
laws to discriminate between ancient custom and the new influences
which were working in them in the direction of individualism and the
disintegration of the kindred. The earliest laws are, as we have seen,
just those in which tribal custom had fared the worst.

[Sidenote: Non-tribal division of classes.]

In the Alamannic Pactus of the sixth century (Fragment ii. 36) the grades
for wergelds were as under:--

    (1) ‘baro de minoflidis,’

    (2) ‘medianus Alamannus,’

    (3) ‘primus’ _or_ ‘meliorissimus Alamannus.’

And these were subdivisions of the _ingenuus_ class, for there were
below them the _lidus_ and the _servus_. In another clause (iii. s. 25)
a similar division is applied to animals. The penalties are given for
killing ordinary, ‘mediana,’ and ‘meliorissima jumenta.’

In the Burgundian law the division of society into three
grades--_optimates_, _mediocres_, and _inferiores_--is found in the _Lex
Romana_ and is applied to Romans and Burgundians alike. These divisions
seem to supplant those of kindred, and to have no tribal principle at
their root.[329]

In the Wisigothic laws the disintegration of tribal society is so far
advanced that the wergelds of the _ingenuus_ class are regulated, not by
kindred or social position, but, as we have seen, according to the age of
the individual.

It is difficult not to connect the substitution of artificial grades for
those dependent on kindred with the Roman tendency to divide society into
‘patrician’ and ‘plebs,’ and the ‘plebs’ according to position and wealth
into _honestiores_ and _humiliores_.

Already in Cæsar’s time we see how difficult it was from a Roman point
of view to understand the relation under tribal custom of the dependent
tribesmen to their chieftain. Cæsar does not seem to have recognised
the link of blood-relationship between them. To his view the chieftains
were _equites_ and the tribesmen almost their _servi_. It was difficult
otherwise to bring the two classes within some recognised category of
Roman law.

So it was no doubt, in degree, at the later period in the case of the
conquering German tribes, when the Romanising forces were mainly in
clerical hands.

The influence of the Church also told in favour of the artificial and
anti-tribal division of the people into great men and small men. Its
tenets of individual responsibility favoured individualism.

[Sidenote: The anti-tribal influences of the Church in Southern Europe.]

Canon XVI. of the Council of Orleans (A.D. 549) shows that the
ecclesiastical mind in Gaul was familiar with the division into classes
‘majorum et mediocrium personarum.’

[Sidenote: Evidence of Merovingian formulæ as regards wergelds.]

A canon of an earlier Council (A.D. 511) shows how by taking refuge in
a church a homicide received protection till composition was arranged,
and how thus the question of wergelds was brought within clerical
recognition. Once brought within its power the Church was not likely
to let it slip from its grasp. And the collections of Formulæ of the
Merovingian period show how the clergy joined with the other authorities
in arranging the payment of wergelds and the prevention of private
vengeance. From these formulæ it would seem that the payment and perhaps
the amount of the wergeld had become to some extent a matter of mediation
and arrangement through the intervention of ‘boni homines’ who were
sometimes ‘sacerdotes.’[330] And when the award was given and the payment
made, it was natural that a formal charter of acknowledgment in stay of
vengeance on the part of the relations of the slain should be insisted
upon. Each set of formulæ contains a form for this purpose. The matter of
wergelds had become a subject of Franco-Roman conveyancing.

[Sidenote: Clerical influences in England in favour of individualism,
evident in the modification of custom found in the Anglo-Saxon laws.]

Romanising and clerical influences thus working together in connection
with wergelds would naturally tend to exclude from consideration the
question of kindred, and to make the payment of the wergeld a matter for
the homicide alone.

Long before the time of King Ine these Romanising influences must have
been at work in England, as elsewhere, introducing new considerations of
justice and the position of classes founded on Roman law and Christian
feeling, and not upon tribal custom.

We have recognised some such action as this in the nearly contemporary
Canons and in the Kentish laws, as well as in the later Anglo-Saxon laws,
and indeed again and again throughout this inquiry, so that while we have
had to notice again and again the extent to which the Church succumbed
to tribal custom when it suited its purpose to do so, it must not be
forgotten how much of the modification of custom found in the laws was
due to the influence of the Romanised Church.

It is not, therefore, enough to recognise only Romanised forms of land
management under clerical influence. We must recognise also something of
the same persistent antagonism of the Church to tribal custom which on
the Continent had already in the sixth and seventh centuries sometimes
succeeded in extruding considerations of kindred from the matter of
wergelds, and to a great extent also from the question of the division of
classes.

       *       *       *       *       *

[Sidenote: Last words.]

With this further recognition of outside influences, this contribution
towards the understanding of a difficult question must come to an end.
All that can be claimed on its behalf is that a few further steps in
advance may have been made good. It may seem to have resulted rather in
the restatement of some of the problems than in their solution. But this
is what might be expected from the attempt to approach a subject which
has many sides especially with light from the tribal side only. Following
the true method of working from the known to the unknown, it is not until
such a problem has been approached separately from its different sides
that a final solution can be reached; and this involves the fellow work
of many historical students.

In the meantime, without ignoring or seeking to minimise the force of
other important influences, it may, I think, safely be said that we have
found the influence of tribal custom upon Anglo-Saxon polity and economic
conditions as apparent, all things considered, as there could be reason
to expect.

It was a factor in economic development which, among others and in due
proportion, has to be reckoned with, and its study has the special value
that it helps to bring the student of the Anglo-Saxon laws to regard them
from the point of view of the Anglo-Saxon settlers themselves.




FOOTNOTES


[1] _Origin of Currency and Weight Standards_, Camb. U. Press, 1892.

[2] For convenience I adhere throughout to reckoning in _wheat-grains_.
Professor Ridgeway informs me that three barleycorns were equated with
four wheat-grains, and that a passage in Theophrastus shows that in the
fourth century B.C. 12 barleycorns = obol and 12 obols = the stater. The
Greek diobol = therefore 24 barleycorns, _i.e._ 32 wheat-grains, and
the stater = 144 barleycorns, _i.e._ 192 wheat-grains. The reader will
understand that as Romans, Celts, Anglo-Saxons, and Normans reckoned in
wheat-grains, there will be great convenience in adhering throughout to
wheat-grains in this inquiry. And further the theoretic building up of
weights in wheat-grains was preserved traditionally more easily than the
actual standards of weight.

[3] The range of the variation in the actual weight of the stater as a
coin (without necessarily implying variation in the theoretic weight in
wheat-grains) is given by metrologists as follows:

                                             Grammes
  Babylonian                                 8·18
  Crœsus                                     8·18
  Darius                                     8·36 to 8·41
  Attic                                      8·64 to 8·73
  Philip of Macedon and Alexander the Great  8·73
  The Greek cities on the Black Sea          9·06


[4] _Kinship &c. in Arabia_, p. 53.

[5] _Ordinances of Manu_, xi. pp. 128-131.

[6] Sections 8 and 11.

[7] Herod. v. c. 77 and vi. c. 79.

[8] The latest results of metrological research are most conveniently
stated by Hultsch in his _Die Gewichte des Alterthums nach ihrem
Zusammenhange dargestellt_, Leipzig, 1898. And Mr. F. G. Hill, of the
British Museum, has recently issued an excellent hand-book of the Greek
and Roman coins containing information on these points.

[9] The relation of the ancient Gallic gold currency to the subject of
wergelds is interesting and important, but cannot be enlarged upon here.

[10] For the authorities for the following short statement see _infra_,
Chap. VII. s. 1.

[11] Besides these silver _tremisses_ some silver _scripula_ were issued,
but it is with the sceatts mainly that we have to do. In connection with
the next section, however, the fact that the scripulum was current as a
coin is worth notice.

[12] _Metrologicorum Scriptorum Reliquiae_ (Lipsiae, 1866).

[13] Hultsch, _Die Gewichte des Alterthums_, pp. 53 and 203.

[14] _Metr. Script._ ii. 131-139.

[15] Hultsch, _Metr. Script._ i. pp. 66 and 87.

[16] Athelstan, vi. 6, s. 2 and vi. 3; and see Schmid’s Glossary under
_Geldrechnung_.

[17] There can hardly have been at Tours at this moment any other
Liutgarda than the queen under Alcuin’s spiritual charge.

[18] For this incident see _Alcuini Epist._ xxv.

[19] _Metr. Script._ ii. 31, 99, 114, &c.

[20] For the references to the Codes and Extents, and authorities for the
statements in this summary, the reader must be referred to the former
volume. But for additional statements full references will be given.
Where not otherwise stated, the figures refer to the two volumes of
_Ancient Laws of Wales_.

[21] Prof. Rhys informs me that _da_ in Carnarvonshire local dialect
still means ‘cattle,’ while in other parts of Wales it has the wider
meaning of ‘goods.’

The allotment of cattle involved grazing rights, and often separate
homesteads. Accordingly in the Denbigh Extent we find that so and so
‘habet domum’ or ‘non habet domum.’

This dependence for maintenance of the boy upon the higher chieftain is
indirectly confirmed by the Extents, which mention among the chieftain’s
rights the ‘fosterage of youths’ &c. See _Tribal System in Wales_, p. 169.

That the chieftain who gives the _da_ was the ‘chief of kindred’ and not
a mere territorial lord is shown by the fact that when a stranger family
have lived in the land till they have formed a kindred by intermarriage
with Cymraes, all the members of the family become ‘man and kin’ to the
chief of kindred of the new kindred. _Tribal System in Wales_, p. 132.

[22] i. pp. 167-169.

[23] p. 543.

[24] p. 549, s. 19.

[25] i. 96 and 545.

[26] If the sister was married to an alltud and her son killed a person,
⅔ of the galanas fell on the mother’s kindred (i. p. 209), but there was
no liability beyond the gwely or second cousins (ii. p. 657).

[27] ‘The galanas of every female shall always be to the kindred,’ i. p.
241.

[28] ‘Three cases wherein a wife is to answer without her husband. The
first is for homicide,’ i. p. 463. But for accessories to murder she
and her husband pay her camlwrw and derwy, i. p. 105; and she can claim
_spearpenny_, i. pp. 103, 705; ii. p. 65.

[29] i. pp. 231-3, 409, 517, 747; ii. p. 695. On separation husband and
wife divided the cattle and most other things equally.

[30] ii. pp. 281-2, 740.

[31] i. p. 765; ii. p. 269.

[32] ii. p. 693.

[33] ii. p. 531.

[34] i. p. 415.

[35] i. pp. 259, 447.

[36] _Tribal System in Wales_, App. p. 59, &c.

[37] The principal tref as contrasted with summer bothy on the mountains.

[38] ii. p. 563.

[39] i. p. 795.

[40] Fol. 280.

[41] i. pp. 283, 499.

[42] i. pp. 111, 459, 745; ii. p. 257.

[43] i. pp. 201, 535.

[44] ii. p. 493.

[45] i. p. 141.

[46] i. p. 229.

[47] For the following statements see _Venedotian Code_, i. p. 223, &c.;
and _Dimetian Code_, i. p. 407, &c.

[48] Sisters paid for their possible children, and if these children were
of age they paid instead of their mothers. After the age at which they
could not have children, the sisters did not pay (i. p. 99). That the
daughter after twelve was independent of her father with _da_ of her own,
see i. p. 205.

[49] i. p. 229.

[50] i. pp. 77, 103.

[51] ii. p. 693.

[52] i. p. 747.

[53] i. p. 231.

[54] i. p. 271.

[55] i. p. 565.

[56] _English Village Community_, c. ix.

[57] For details and references to the Codes I must refer the reader to
Chap. V. of _The Tribal System in Wales_.

[58] See _infra_, p. 319.

[59] In the quotation of passages from _Beowulf_ I have mostly followed
Professor Earle’s translations.

[60] See _Structure of Greek Tribal Society_, by H. E. Seebohm, chap. ii.

[61] _Nefan_ cannot mean son or grandson, for Hygelac was his father and
his grandfather was Hrethel.

[62] The references in this chapter are to the four volumes of _The
Ancient Laws of Ireland_. I regret very much not to have had the
advantage of vol. v. edited by Dr. Atkinson and not yet published, but I
am greatly indebted to him for his kind help and advice on many difficult
points.

[63] iv. p. 259. This passage is abridged.

[64] iii. p. 69.

[65] _Ibid._ and iv. 245-248.

[66] _Cours de Littérature Celtique_, tome vii. _Etude sur le Droit
Celtique_, tome i. p. 186.

[67] The view here taken, that the four fines in the geilfine division
are classes or grades of relationship, makes more intelligible the rules
laid down in the Book of Aicill (iii. 331-335), especially the one which
determines that ‘if one person comes up into the “geilfine” so as to make
it excessive, a man must go out of it into the “deirbhfine,” and a man
is to pass from one division into the other up as far as the indfine,
and a man is to pass from that into the community.’ Obviously, as a
fresh _generation_ comes into the nearest hearth, a generation at the
top naturally moves out of the group. The great-grandfather becomes a
great-great-grandfather, and so on.

[68] i. p. 263, and iv. p. 245.

[69] iv. p. 245.

[70] iii. p. 99.

[71] p. 101.

[72] ii. p. 195.

[73] iv. p. 283.

[74] Dr. Atkinson has kindly given me a reference to MS. H. 3-18, 237 and
485, the former of which ends its paragraph on ‘sencleithe’ thus:--‘If
he serve from that onward, till the fifth man come and during the time
(_his_ time?), then he is a sencleithe and he cannot go from the heirs
[comarba] for ever after.’

[75] See _Senchus Mor_, i. p. 76 and iii. p. 43.

[76] i. pp. 65-77.

[77] _Round Towers of Ireland_, p. 219.

[78] Fol. 181, b.b. This will be inserted in Dr. Atkinson’s vol. v. of
the Brehon Laws.

[79] In one MS. ‘six score ounces.’

[80] Petrie, _Round Towers of Ireland_, p. 214.

[81] _Tripartite Life of St. Patrick_, ii. p. 372.

[82] _Ibid._ i. p. 212.

[83] Altilia, _i.e._ fattened heifers, Skeat, _sub voce_ ‘heifer.’

[84] The samaisc heifer of the Brehon Laws being ½ oz., and the dairt
heifer ⅙ oz., the fattened heifer would naturally take the middle place
between them as ¼ oz.

[85] Wasserschleben refers these canons to the fifth century Synod under
St. Patrick.

[86] ‘_Si colirio indiguerit_’ seems to be equivalent to the Irish
‘that requires a tent.’ But Dr. Atkinson informs me that the Irish word
literally means ‘a plug of lint.’

[87] Compare this clause with the ‘Book of the Angel,’ _Tripartite Life_,
ii. p. 355. ‘Item si non receperit prædictum præsulem in hospitium eundem
et reclusserit suam habitationem contra illum, septem ancillas (cumala)
sive septem annos pœnitentiæ similiter reddere cogatur.’

[88] See _Senchus Mor_, i. p. 43: ‘Equal dire-fine for a king and a
bishop, _i.e._ equal honour-price to the “rig tuath” and the bishop,
_i.e._ of the church of a “rig tuath.”’

[89] P. 141.

[90] i. p. 127.

[91] _Pœnitentiale Vinnicii_, s. 23; Wasserschleben, p. 113.

[92] _Tripartite Life_, p. 378 _n._

[93] _Questions Historiques_, pp. 105-117.

[94] Pertz, Bluhme’s preface, p. 498.

[95] Bindung’s _Das Burgundisch-Romanische Königreich von 443 bis 532 n.
Chr._ chap. i.

[96] Lib. vii. Tit. iii. s. 3.

[97] Lib. vi. Tit. v.

[98] Hessels and Kern, Codex x. Tit. lxi.

[99] Brunner (_Sippe und Wergeld_, p. 31) prefers the reading of the
other codices, ‘on either side,’ but the principle is the same; the fisc
gets whatever share lapses, whether it be ¼ or ½.

[100] Hessels and Kern, Tit. ci., p. 412. Pertz, _Legg._ 11, 5.

[101] This translation of the final clause does not materially vary in
meaning from that of Brunner, _Sippe und Wergeld_, p. 34.

[102] Brunner, _Sippe und Wergeld_, p. 34.

[103] _Sippe und Wergeld_, p. 34.

[104] _Sippe und Wergeld_, p. 36. ‘Es dünkt mir sehr wahrscheinlich, dass
auch in der Lex Salica unter den ‘tres proximiores’ Verwandte von drei
verschiedenen Parentelen gemeint sind.’

Later examples of division of wergelds in other districts quoted by
Brunner show that the division of the kindred into three similar grades
or groups was prevalent also in Frisian and Saxon districts.

[105] Codices 3, 7, 8, 9 have ‘de quod non.’

[106] Tit. xxix.

[107] See his essay on this subject in his _Problèmes d’Histoire_, pp.
361 &c.

[108] Brunner, in his _Sippe und Wergeld_, shows this clearly, pp. 1-3.

[109] Blumenstock, i. 266.

[110] Tit. lvi.

[111] Tit. vi.

[112] The clause _De reipus_ is very important in regard to some of these
points. But the subject is too difficult a one to be discussed here.

[113] Guérard, on the other hand, says: ‘C’est l’alleu d’un Salien défunt
que la loi divise en deux parts: dans l’une est la terre salique, et dans
l’autre la terre non salique; mais ces deux terres sont également partie
de la succession du défunt.’ _Polyptique d’Irminon_, i. p. 487. But he
does not seem to have noted the use of ‘land’ unqualified in the saving
clause of the first 4 codices.

[114] _Erbenfolge_, &c., pp. 12-14.

[115] _Deutsches Wirtschaftsleben_, i. p. 39.

[116] _Polypt. d’Irminon_, i. p. 495.

[117] _English Historical Review_, January 1893.

[118] Hessels and Kern, Tit. 78; Pertz, _Leg._ ii. p. 10.

[119] See note in Hessels and Kern, and Amira in his _Erbenfolge_, p. 16
(München, 1874).

[120] See _supra_, pp. 26, 27.

[121] This is repeated, ii. p. 391. ‘The argluyd takes him as a son, and
if he die receives his _da_ unless he leaves a son.’ Up to 14 his father
was his ‘argluyd.’

[122] Sohm, in his preface to the _Lex_ in Pertz (dated 1882), p. 188,
concludes that this clause and clause 36 must be referred to the sixth
century. There is a Formula in Marculf’s collection in which instructions
are given to a newly appointed official, _inter alia_, to judge Franks,
Romans, Burgundians, and those of other nations ‘secundum lege et
consuetudine eorum’ (Marc. _Form._, Lib. i. 8.)

[123] In the Burgundian Law the wergeld is 150 solidi; in the Alamannic
Law, 160 solidi; in the Bavarian law, 160 solidi. That this was also the
wergeld of the Frisian and Saxon see _infra_.

[124] See Merkel’s preface to the laws in Pertz, p. 14.

[125] In the Burgundian laws the division is into ‘optimatus’ with a
wergeld of 300 sol., ‘mediocris’ with 200 sol., and ‘minores ’ with 150
sol.

[126] Introduction, p. iv.

[127] Martini, _Metrologia_, _sub_ ‘Roma.’ See also _Traité de Numismatique
du Moyen Age_, par A. Engel, vol. i. p. 222.

[128] Pertz, p. 119.

[129] Pertz, p. 149.

[130] _Hludowici et Hlotharii Capitularia_, Pertz, p. 251.

[131] _De Mirac. S. Martini_, l. i. c. 31. Mention of the _aureus_ occurs
twenty-four times in the index to his works. Mention of _trientes_ occurs
twelve times, and of _argentei_ five times.

[132] In some codices placed at the end of Lib. xii., Tit. ii. See
edition of Walter (1824), p. 669.

[133] ‘Ex Isidori Etymologiarum Libris, c. De ponderibus.’ Hultsch, ii.
113.

[134] Twelve argentei (12 × 72 w.g.) = 864 w.g., or at 1:10 the
Merovingian solidus of 86·4 w.g.

[135] Pertz, p. 18.

[136] Pertz, p. 31.

[137] Pertz, p. 39.

[138] In this Capitulare three grades of payments are stated, a pound,
a half-pound, and five solidi. Five solidi in this scale should be ¼
lb., and in wheat-grains the scale would be 6912, 3456, and 1728. 1728
wheat-grains is 5 solidi of 12 denarii of 28·8.

[139] Capitulare Mantuanum, s. 9, ‘De moneta: ut nullus post Kalendas
Augustas istos dinarios quos modo habere visi sumus dare audeat aut
recipere: si quis hoc fecerit, vannum nostrum conponat.’

[140] _Beiträge zur Geschichte des Geld- und Münzwesens in Deutschland._

[141] Forty argentei or drachmæ to the solidus would have meant a ratio
of about 1:30.

[142] _Polyptique d’Irminon_, Introduction, i. 151. See also No. 82 of
St. Gall Charters (Wastmann, i. p. 78), in which is an annual payment of
‘i bovem v solidos valentem’ sub anno A.D. 778.

[143] Pertz, p. 85.

[144] Pertz, p. 114.

[145] Pertz, p. 116.

[146] Pertz, p. 72. Refusing to receive the new denarii must have meant
as 12 to the solidus, for the new denarii themselves were heavier than
the old ones, 32 wheat-grains instead of 28·8.

[147] Pertz, p. 494. _Karoli II. Edictum Pistense_, A.D. 864: Ut in
omni regno nostro non amplius vendatur libra auri purissime cocti, nisi
duodecim libris argenti de novis et meris denariis.

Illud vero aurum quod coctum quidem fuerit, sed non tantum ut ex
deauratura fieri possit eo libra una de auro vendatur _decem_ libris
argenti de novis et meris denariis.

[148] _Traité de Numismatique du Moyen Age_, par Arthur Engel (Paris,
1891), vol. i. pp. 329-332.

[149] Sohm, in his preface to the Ripuarian law in Pertz, against his own
former opinion, concludes that clause xxxvi. did go back to the sixth
century, and was originally a part of the Lex (p. 188).

[150] See Richthofen’s preface to the Frisian Laws in Pertz, p. 631.

[151] They appear in the ‘_Additio Sapientium_,’ Tit. ii., clauses lxiii.
and lxxviii.

[152] ‘Inter Wisaram et Laubachi, duo denarii novi solidus est.’

[153] ‘Inter Laubachi et inter Flehi, tres denarii novæ monetæ solidum
faciunt.’

[154] ‘Inter Flehi et Sincfalam solidus est duo denarii et dimidius ad
novam monetam.’ That the word _denarius_ was applied to gold as well
as silver coins, see mention of the ‘gold penninck’ of Gondebald in
_Chronijck van Vrieslandt_, _sub_ A.D. 739.

[155] ‘Inter Laubachi et Wisaram weregildus nobilis 106 solidi et duo
denarii, liberi 53 solidi et denarium, liti 26 solidi et dimidius et
dimidius tremissis.’

[156] ‘Si nobilis [_or_ liber _or_ litus] nobilem occiderit, 80 solidos
componat; de qua muleta duæ partes ad hæredem occisi, tertia ad
propinquos ejus proximos pertineat … liberum solidos 53 et unum denarium
solvat … litum 27 solidos uno denario minus componat domino suo, et
propinquis occisi solidos 9 excepta tertia parte unius denarii.’

[157] ‘Inter Fli et Sincfalam weregeldus nobilis 100 solidi, liberi 50,
liti 25 (solidi denarii 3 novæ monetæ).’

[158] ii. lxxxiv.

[159] Tit. vi.

[160] Engel’s _Traité de Numismatique du Moyen Age_, i. 233 and 329.

[161] Martini’s _Manuale de Metrologia_, _sub_ ‘Emden.’ And compare
Ridgeway, p. 871. He shows that in Italy and Sicily 10 sheep = 1 cow.

[162] It is true that in the clauses trebling the amounts for wounds it
is not directly stated that the _wergelds_ were also trebled; but the use
of the words in Tit. I., ‘_in simplo_,’ suggests that it may have been
so; whilst the facts that the triple payment for the loss, _e.g._ of the
eye, which in the title _De Dolg_ was a half wergeld, would otherwise
exceed the full wergeld, and that, in the one case in which in the ‘De
Dolg’ the whole wergeld was payable, the amount in the Additio is the
_treble_ wergeld, make it almost certain that it was so, otherwise the
injury would be paid for at three times the value of a man’s life.

[163] 4608 × 3 = 13824, _i.e._ 160 solidi of 86·4 wheat-grains. The
wergeld of the Island of Gotland was also 3 gold marks or 160 solidi
of Merovingian standard. See also on the whole question Dr. Brunner’s
article ‘Nobiles und Gemeinfreie der Karolingischen Volksrechte’ in
_Zeitschrift der Savigny-Stiftung_ &c., vol. xix.

[164] It would exactly equal 200 of the local solidi of two tremisses at
a ratio of 1:8, or 160 solidi of 80 wheat-grains instead of 86·4.

[165] Pertz, p. 83.

[166] Pertz, p. 84.

[167] Pertz, p. 34.

[168] Pertz, p. 84.

[169] Pertz, p. 118.

[170] See Du Cange _sub voce_ ‘Pecunia,’ and the cases there mentioned in
which the word = _pecudes_, _grex_, &c.

[171] See _Études sur la Lex dicta Francorum Chamavorum et sur ‘Les
Francs du Pays d’Amor,’_ par Henri Froidevaux. Paris, 1891, chap. ii.

[172] It has already been stated that the wergeld of the Island of
Gotland was three gold marks or 160 Merovingian solidi. But owing to the
late date of the Gotland laws it cannot be regarded as certain that the
amount was the same at the date of the Ripuarian laws.

[173] The depreciation in weight cannot have been the result of ignorance
of the Roman standard. We learn from the excellent table given by
Montelius in his _Remains from the Iron Age of Scandinavia_ that the gold
solidi of the Eastern Empire found their way into the Islands of Gotland,
Oland, and Bornholm in considerable numbers, between A.D. 395 and 518.
He shows that, while no silver coins of the Republic or before Nero have
been found in Scandinavia, coins belonging to the silver currency of Rome
after Nero found their way northwards in considerable numbers. Of Roman
coins A.D. 98-192 only four gold coins are known to have been found and
2304 silver coins. Then the gold currency begins, and of dates between
A.D. 235-395, sixty-four gold coins have been found and only one solitary
silver coin. Lastly came the gold currency of the solidus of Constantine
and his successors A.D. 395-518, and of this period 286 gold coins and
one silver coin are recorded as having been found in Scandinavia. It
is clear, then, that the Roman standard as well as the Roman system of
division of the lb. was known in the North. For a long period no doubt
the chief trade of the Baltic was with the Byzantine Empire and the East.

[174] _Die Entstehungszeit der älteren Gulathingslög_ von Dr. Konrad
Maurer, p. 5.

[175] The Reksthane is an official, and quite a different person from the
Bónde.

[176] The Árborinn man seems to be the same as the Aettborinn man, _i.e._
‘a man born in a kindred.’

[177] Elsewhere called the Odal-born-man.

[178] The hauld seems to have been the same as the odal-born man.

[179] See also the Frostathing Law IV. 31, in which in a similar case the
person is outlawed.

[180] The Nefgildi-men include the slayer’s mother’s father, daughter’s
son, mother’s brother, sister’s son, father’s sister’s son, mother’s
sister’s sons, son’s daughter’s son, daughter’s daughter’s son, brother’s
daughter’s son, sister’s daughter’s son.

[181] 4608 × 30 = 138240, and this divided by 8 = 17280 w.g. of gold,
_i.e._ 200 gold solidi of 86·4 w.g.

[182] The following is from the _Venedotian Code_, i. p. 179. ‘The
ecclesiastical law says that no son is to have the patrimony but the
eldest born to the father by the married wife: the law of Howell,
however, adjudges it to the youngest son as well as to the oldest (_i.e._
all the sons), and decides that sin of the father or his illegal act is
not to be brought against a son as to his patrimony.’ Bastards were not
excluded till the Statute of Rothllan.

[183] ‘Geschlecht und Verwandtschaft im alt-norwegischen Rechte,’ in the
_Zeitschrift für Social- und Wirthschaftsgeschichte_, vol. vii. (Weimar).
To this essay I am much indebted.

[184] Some authorities infer from this that the _parents_ alone were put
in the grave. K. von Maurer thinks _only the children_, and apologises
for it as ‘nur eine aus grauer Vorzeit überlieferte Antiquität.’

[185] Skåne, being only divided from the island of Zealand by the Sound,
during the Viking period belonged to Denmark. It afterwards became a
Swedish province, being finally ceded by Denmark in 1658.

[186] The various views upon the relation of the two versions to each
other are very usefully discussed in the introduction to M. Beauchet’s
_Loi de Vestrogothie_ (Paris, 1894), pp. 67-75. The Latin version was
published in 1846 at Copenhagen as Vol. I. of the _Samling af Danske
Love_ and both Latin and Danish versions in Dr. Schlyter’s _Corpus Juris
Sueo-Gotorum antiqui_, Lund. 1859.

[187] See Du Cange, _s. v._ ‘Moventes’ = _pecudes_.

[188] ‘Filius-familias’ in another MS.

[189] As to the _fælagh_ or partnership between husband and wife, see
the Gulathing Law, 53. The word _fælagh_ seems to be equivalent to the
‘_definitio_’ of the Latin text, the _definitio_ of the property being
made at the time of the marriage. The word seems to be allied to the
English word ‘fellowship.’ See Skeat, _sub_ ‘fellow,’ who refers it to
Icelandic ‘felag,’ literally ‘a laying together of property.’

[190] See _Untersuchungen zur Erbenfolge &c._, Julius Ficker, ii. p.
143: ‘Gulathingsbuch und Frostathingsbuch kennen keinen Eintritt der
Sohnessöhne in das volle Recht des Parens.’

[191] Beauchet, p. 60.

[192] Addition F. 1.

[193] _Skanska Stadsrätten_, s. 43.

[194] See I. s. 92 of the Danish version. The word Manbötær = _mulcta
homicidii_, Schlyter, Gloss. _sub voce_.

[195] See _Ancient Laws of Scotland_, preface, p. 42.

[196] _Ibid._ i. 8.

[197] These extracts are abridged and put into modern English.

[198] Compare the colpindach with the Irish ‘colpach heifer.’ In the
_Crith Gabhlach_, p. 300, the Irish text has the word _colpdaig_
translated ‘colpach heifer.’ Probably the xxix should be ixˣˣ, _i.e._
180. See _Ancient Laws of Scotland_, p. 270 (red paging), as to the next
clause.

[199] ‘Oc-thigernd’ = ‘Jung herr,’ Windisch, p. 757.

[200] _Scotland under her early Kings_, i. p. 258 _n._, and ii. p. 307.

[201] _Ancient Laws of Scotland_, i. p. 233.

[202] _History of English Law_, Pollock and Maitland, i. pp. 145 and 202.
There is an elaborate comparison of this Scotch treatise with Glanville’s
in the _Ancient Laws of Scotland_ commencing at p. 136 (red), which is
very helpful.

[203] _Book of Deer_, preface, p. lxxxi. Toshach (toisech). The two
officers in a townland were the _mormaer_ and the _toisech_. _Ced_ in
Irish = hundred. Tosh-_ced_-erach possibly may have meant ‘head of the
hundred.’

[204] See _infra_, c. xi.

[205] Robertson’s _Historical Essays_, p. 47.

[206] See preface to the _Ancient Laws of Scotland_.

[207] Gulathing law, s. 152.

[208] See Windisch, _Wörterbuch_, sub voce ‘_ter-fochrice_,’ also
‘_fo-chraic_.’

[209] Vol. i. p. 655.

[210] This passage is from the last clause in the so-called treaty
between Edward and Guthrum, ‘when the English and Danes fully took to
peace and to friendship, and the Witan also who were afterwards, oft and
unseldom that same renewed and increased with good.’ Thorpe, p. 71; and
see Schmid’s _Einleitung_, p. xlii.

[211] 120_s._ of 5_d._ = 50_s._ of 12_d._

[212] Three marks are double 12 ores.

[213] See the instances of services of sochemen given by Mr. Round in
his invaluable chapter on the Domesday book in his _Feudal England_,
pp. 30-34, from the ‘Ely placitum’ of 1072-1075: ‘Qui _quotiens abbas
preceperit_ in anno arabunt suam terram’ &c. And again _quotienscunque
ipse præceperit_ in anno arabunt’ &c. These are services of the
sochemanni of Suffolk and Norfolk ‘qui non possunt recedere.’

[214] Cf. Ine, 74. The xl_s._ to be paid for the ‘Waliscus’ slave who had
committed homicide may be double value by way of penalty.

[215] Laws of Cnut, s. 63 and s. 66.

[216] Mr. Keary’s Introduction to the Catalogue of the Coins in the
British Museum, Anglo-Saxon series, vol. ii. p. lxxxi.

[217] Engel, vol. ii. p. 849 et seq.

[218] Introduction, vol. ii. p. lvii.

[219] The word is used in the sense of mint-master or money coiner. See
Du Cange, _sub voce_ ‘Monetarius.’

[220] The Anglo-Saxon pound of 240 pence or 364 grammes divided by
fifteen = 24·2 grammes.

[221] The normal weight of the English penny of 32 wheat-grains was 1·51
grammes. The coins of Cnut’s predecessors sometimes fully reached this
standard, though oftener somewhat below it. The exact weight of 1/20 of
the Danish ore would be 1·21 grammes, and Cnut’s silver pence seem to
aim at this weight. Out of 574 silver pence of Cnut described in the
Catalogue of the British Museum 400 weigh between ·972 and 1·23 grammes.
Only 1½ per cent. are of greater weight. Ethelred’s silver pence were
not by any means generally of full standard of 32 wheat-grains or 1·51
grammes, but still, out of 339 in the British Museum 25 per cent. are
fairly up to this standard and 90 per cent. are above the weight of the
new silver pence of Cnut--1/20 of his ore. Cnut also reduced the _size_
of the pence. See the B. M. Catalogue plates.

[222] ‘Grith’ seems to be a Danish word of nearly the same meaning as
‘frith.’ See Schmid’s Glossary, _sub voce_.

[223] This is in accordance with Ine, 6.

[224] Laws of Ethelred, ix. (Thorpe, p. 145).

[225] Thorpe, p. 124.

[226] MS. G. British Museum, Cott. Nero A. 1. fol. 5.

[227] Thorpe, p. 141, Schmid, _Anhang iv._

[228] Compare Æthelstan, iv. 4.

[229] This, from the Kentish Laws, was correctly quoted.

[230] Schmid, _Anhang xii._

[231] Pollock and Maitland, i. p. 20. But see Laws of King Edmund, s. 4,
‘On Blood-shedding.’ ‘Also I make known that I will not have to “_socn_”
in my “hirede” that man who sheds man’s blood before he has undertaken
ecclesiastical “bot” and made “bot” to the kindred,’ &c. See also in s. 6
the use of the words ‘_mund-brice_ and _Ham-socn_.’

[232] Another reading has xxx. See Schmid, p. 206. The Latin version has
xxv, and the quotation in the Laws of Henry I also has xxv.

[233] 25 × 240 = 6000 pence = 1200 Wessex scillings of 5_d._

[234] Catalogue of English Coins, Anglo-Saxon series. Introduction, p.
xxxi, to vol. ii.

[235] Thorpe (p. 75) appends this clause to the so-called Laws of Edward
and Guthrum. But Schmid considers it as a fragment and places it in his
_Anhang vii._

[236] Schmid, _Anhang vii._ 2; Thorpe, p. 79.

[237] A ceorl’s wergeld is cclxvi thrymsas, _i.e._ cc scillings by
Mercian law. 266⅔ × 3 = 800 pence or 200 Mercian scyllings of 4 pence.

[238] From the text of MS. D.

[239] The fragment itself is a combination of two or more. But the
statement of wergelds in _thrymsas_ seems to unite them. Schmid also
points out that the _eorl_ had not yet superseded the ealdorman. See
_Einleitung_, p. lxv.

[240] 2000 thrymsas of 3_d._ equalled 1200 Wessex scillings of 5_d._, so
that the ceorl with five hides to the king’s utware became a twelve-hynde
man. There is no allusion to the six-hynde status as a halfway step
towards the gesithcund status. And the use of the word ‘gesithcund’ seems
to throw back the original date of these clauses to that of Ine’s law,
the word not being used in later laws. See Schmid’s _Glossary_, sub voce
‘Gesith.’

[241] _I.e._ of pure silver. Compare the same phrase ‘de novis et meris
denariis’ in the _Edictum Pistense_, A.D. 864, quoted _supra_, p. 191, n.

[242] See _supra_, p. 344.

[243] _Ancient Laws of Ireland_, vol. iv. p. 227.

[244] See _supra_, p. 345.

[245] Ine came to the throne in A.D. 688, and Alfred’s treaty with
Guthrum was in A.D. 880.

[246] See Schmid’s Glossary _sub voce_ ‘Eideshülfe.’ There is only one
mention of oaths of so many hides in the later Anglo-Saxon laws, viz. in
Alfred, s. 11, in which it is stated that a woman must clear herself from
a charge of previous unchastity with 60 hides.

[247] The monk’s oath was one fourth of the priest’s in value: so 400
_argentei_ = one fourth of 800 _sicli_.

[248] See Schmid’s introduction, where he states his reasons for placing
Ine’s Dooms before Alfred’s in his edition of the Laws.

[249] This is repeated in Henry I. lxix.

[250] Schmid, _Anhang ii._

[251] Schmid, Glossary, _sub voc._ ‘Die Britischen Einwohner von
Cumberland.’ But the mention of York is conclusive.

[252] See Schmid’s note on this passage, and see also Liebermann’s
translation.

[253] Thorpe, p. 150; Schmid, _Anhang i._

[254] The only mark of the geographical position of the district is that
in the final clause: ‘Formerly the Went-sætas belonged to the Dun-sætas,
but more properly they belong to the West Saxons; there they shall give
tribute and hostages.’

[255] Translated in the Latin version by ‘corium,’ the meaning probably
being that 12 scillings would buy off a scourging.

[256] In the Laws of Henry I. (lxx. s. 5) the ‘theow-wealh’ is translated
‘servus Waliscus,’ and is worth double the ordinary slave, unless the
amount be a double penalty.

[257] The usual explanation of these terms is that they are derived
from the number of shillings in the wergeld. Mr. Earle in his valuable
_Handbook to the Land Charters_ &c. (p. 1) considers ‘hynde’ to be an
old form of ‘ten’ and to refer to the number of soldiers of whom the
twelve-hynde and six-hynde men were captains. ‘The former was a captain
of 120 and the latter of 60.’ Neither of these explanations seems to me
to be satisfactory.

[258] This view that the single oath of the twelve-hyndeman was reckoned
as a 10 hide oath is confirmed by the translation in the Latin of the
_Quadripartitus_ of Ine’s Laws, s. 46. The Anglo-Saxon ‘þonne sceal he be
lx hyda onsacan,’ is translated by ‘tunc debet per lx hidas _i.e._ _per
vi homines_ abnegare.’ And in s. 19 ‘potest jurare pro lx hidis _i.e._
_pro hominibus vi_.’ Schmid remarks on these passages: ‘Hiernach würde
also jeder Eideshelfer 10 Hiden vertreten.’

[259] Schmid, p. 157; Thorpe, p. 97.

[260] _Judicia Civitatis Lundoniæ_, c. 8, s. 2; _Ath. L._ vi.

[261] _Decretum Episcoporum et aliorum sapientum de Kancia de pace
observanda._ _Ath. L._ iii.

[262] Birch, No. 102, A.D. 701.

[263] _Ib._ 113, A.D. 705.

[264] _Ib._ 142, A.D. 725.

[265] _Hist. Eccl._ lib. iii. c. 24.

[266] _Glossary_, sub voce ‘Gesith,’ and see Bede, iii. 14 and 22, iv. 4
and 10, and v. 4 and 5.

[267] Bede, ii. c. ix.

[268] _English Village Community_, chap. v.

[269] See _Transactions of the Royal Historical Society_, New Series,
vol. xiv.

[270] _English Village Community_, p. 117 _et seq._

[271] Birch, 412.

[272] Roxburgh Club, p. 138.

[273] Compare _ærdian_, to inhabit; and so _bur_bærde and _theow_bærde,
as below.

[274] About A.D. 995. Cod. Dip. 1290.

[275] _Cod. Dip._ mcccliv. See also _Liber Eliensis_, p. 120.

[276] Alfred, s. 37.

[277] See _supra_, pp. 180-185.

[278] The difference in spelling will be noticed. The Kentish spelling is
mostly _scætt_. Elsewhere the spelling is _sceatt_.

[279] Schmid, _Anhang vii._ p. 398.

[280] It cannot be right, I think, to reason the other way with Schmid,
that as there were 30,000 sceatts in the King’s wergeld of 120 pounds,
there must have been 250 sceatts in the pound and 4·166 sceatts in the
Mercian scilling instead of four.

[281] Catalogue &c., Introduction, p. xviii.

[282] ‘We must remember further that many of the coins of the Kings of
Mercia were probably likewise struck in Kent, and that when we find,
as we do, the same moneyers’ names occurring on the coins of a King of
Mercia … and on the coins of Ecgbeorht, the probability is that these
moneyers were Kentishmen who struck first for one master of their country
and then for the other’ (_Ib._ p. xvii).

[283] See Schmid’s _Glossary_, sub voce.

[284] See Laws of Ethelbert, ss. 77, 78 and 79, and 83.

[285] In translating Luke xx. 24 and Mark xii. 15, ‘Show me a penny,’ the
word used to translate ‘denarius’ is _skatt_.

Again, Luke vii. 41, the two debtors, one owing 500 and the other 50
denarii, are translated by Ulphilas as owing ‘skatte finfhunda’ and
‘skatte finftiguns.’

Again in John xii. 5, ‘Why was not the ointment sold for 300 denarii?’
‘ccc skatti’ are the words used, and so also in the parallel passage Mark
xi. 5, ‘thrijahunda skatti.’

In all these cases it seems to be clear that the _skatt_ is the _coin_.
And that it was a silver coin seems to be shown by the use by Ulphilas of
the word _skatt_ in reference to the ‘thirty pieces of silver’ in Matt.
xxvii. 6-9.

[286] The word occurs seven times in the five Gothic records from Naples
and Arezzo generally appended to editions of ‘Ulfilas.’ In the edition
of Massmann (Stuttgart, 1857) see vol. ii. p. 810. In that of Heyne and
Wrede (Paderborn, 1896) see p. 227 &c.

[287] Schmid, _Anhang x._ p. 404; Thorpe, p. 76.

[288] This may be doubtful: _Sceatta scilling-rim_, ‘gold to the worth of
600 scillings,’ Grein, ii. p. 408; _sceatta_, gen. plural of ‘sceatt,’
_nummus, pecunia_. Grein, ii. p. 405.

[289] British Museum Catalogue, Anglo-Saxon series, vol. i. xiii.

[290] See Schmid’s _Glossary_, sub ‘Geldrechnung,’ p. 594. The inference
seems to be too strong to be disregarded. Comparing s. 54 with ss. 70-72,
the great toe is valued at 10 scillings, _i.e._ half the value of the
thumb in s. 54, viz. 20 scillings. And it is stated in s. 54 that the
thumb nail is worth 3 scillings, and in s. 72 that the toe nail is to be
paid for at 30 scætts, which would be half 3 scillings of 20 sceatts. The
other toes are said in s. 71 to be respectively worth half the fingers.
The finger nail in s. 71 at 1 scilling compares with the other toe nails
at 10 scætts in s. 72--again one half. Presuming that the scale of one
half is maintained throughout, 30 scætts is half 3 scillings and 10
scætts half one scilling. The scilling, therefore, must be 20 scætts.

This conclusion is strengthened by the graduated scale of payments in
ss. 33-36, viz. 50 scætts (_i.e._ 1½ scilling) 3, 4, 10, 20 scillings.
See also s. 16, where the scale is 30, 50 (? 60) sceatts and 6 scillings
(120 scætts). In ss. 58-60 a bruise is 1 scilling, covered 30 scætts,
uncovered 20 scætts. It seems to be impossible to make these figures
comport with the Mercian scilling of 4 scætts or the Wessex of 5 scætts
or the Salic solidus of 40 scætts. The conclusion must be that the
Kentish scilling was of 20 scætts.

[291] 576 divided by 10 = 57·6, _i.e._ two tremisses of 28·8 wheat grains.

[292] Alfred’s words were: ‘But those things which I met with, either
of the days of Ine my kinsman, or of Offa King of the Mercians, or of
Æthelbryht, who first among the English race received baptism, those
which seemed to me the rightest, those I have here gathered together and
omitted the others.’

[293] British Museum Cott. Nero A. 1. fol. 5, and _supra_, p. 346.

[294] British Museum, _ibid._ fol. 33 b.

[295] See Gulathing, 178.

[296] Compare Cnut’s secular laws, s. 59, on _Borh-bryce_. In both
passages the additional words ‘and three to the archbishop’ do not seem
to be taken from Kentish law. It is obvious from the fragment ‘Of Grith
and of Mund’ that it was well known that in Kentish law ‘the mund-bryce
of the King and the archbishop were the same.’

[297] See also _Anhang iv._ Schmid, p. 385.

[298] See Schmid, _Glossary_, sub ‘Geldrechnung,’ p. 594.

[299] Konrad von Maurer’s ‘Ueber Angelsächsische Rechtsverhältnisse,’ in
the _Kritische Ueberschau_, vol. iii. p. 48.

[300] Compare the ‘octogild’ and ‘novigild’ of the Alamannic and other
laws. The literal meaning of ‘xii gylde’ seems to be payable with ‘twelve
times the gylde.’

[301] The division of the words in the MS. is as follows: ‘Gif cyninges
ambiht smið oþþe laadrinc mannan of slehð medumanleod gelde forgelde.’

[302] So also Grimm in his _Deutsche Rechts Alterthümer_, p. 653,
‘dimidio, nicht moderato, wie Wilk. übersetzt.’ Compare ‘medeme mynster,’
_supra_, p. 346, and ‘medeme thegn,’ Cnut, ii. 71, s. 2.

[303] Possibly the King’s servants were otherwise exempt for injuries
done in carrying out their work.

[304] Cf. _Book of Aicill_, p. 267, where injury inflicted in _quick
driving or at work_ has only a half fine; ‘the excitement of the work
or of quick driving takes the other half fine off them.’ See also the
elaborate rules with regard to accidents of the smith in his smithy, p.
187 &c. The general rule stated is ‘that the person who plies the sledge
on the anvil is exempt from penalties for injuries arising from the work
he is engaged on;’ and again ‘if either the sledge or anvil break, he
is exempt for injuries to idlers, and he pays one third compensation to
fellow labourers, &c.’ Clerical influence may perhaps be recognised in
both the Brehon and Kentish clauses.

[305] That the soul-scot in later times was paid at the open grave see
Ethelred, v. 12, vi. 20, ix. 13; C. E. 13.

[306] Compare s. 86 and 87, where _ealne weorðe_ means a ‘whole worth’ of
an esne, and contrast the ‘medume leodgild’ of 100 scillings payable as
bot by the lender with the ‘ealne leod’ payable by the slayer.

[307] That the _esne_ was very near in position to the ‘theow’ see Alf.
43, where Church holidays are to be given to ‘all freemen but _not to
theow-men and esne work-men_’--‘butan þeowum mannum & esne-wyrhtum.’

[308] Liebermann considers that the 300 and 100 scillings are the wergeld
of the eorlcundman and the freeman. His translation reads: ‘welcher
steht im 300-Scillwergelde’ and ‘welcher im 100-Scillwergelde steht.’
Whether these payments are the wergelds is the point at issue. Schmid,
in his note to this passage, favours the view that 300 scillings was the
_half_-wergeld of the eorl and 100 scillings the half-wergeld of the
freeman.

[309] xxxv. 5. ‘Si servus alienus aut laetus hominem ingenuum occiderit,
ipse homicida pro medietatem compositionis illius hominis occisi
parentibus tradatur, et dominus servi aliam medietatem compositionis se
noverit soluiturum.’

[310] ‘Ceorlian,’ to marry a husband; ‘wifian,’ to marry a wife.
Bosworth, _sub voce_.

[311] _Supra_, p. 259.

[312] _Supra_, p. 176.

[313] _Supra_, p. 199.

[314] _Supra_, p. 169.

[315] In the Bavarian and Saxon laws the _litus_ was paid for at one
fourth the wergeld of the _liber_. The inference from this might
strengthen the view that the Kentish wergeld of the ceorl could hardly be
as low as 100 scillings.

[316] I adhere to this view after careful consideration of the elaborate
argument in the _Die Gemeinfreien der Karolingischen Volksrechte_, von
Philipp Heck (Halle, 1900), in reply to the criticism by H. Brunner in
the _Savigny-Stiftung für Rechtsgeschichte_, xix Band, 1899.

[317] 1200 scillings of 4_d._ with one fourth added = 1200 scillings of
5_d._

[318] _Deutsche Rechtsgeschichte_, i. 225-6.

[319] 60 + 40 Kentish scillings = 1200 + 800 scætts. The average 1000
sceatts = 200 Wessex scillings of 5 scætts.

[320] _Supra_, p. 265.

[321] _Supra_, p. 367.

[322] _Supra_, p. 322; and Laws of Alfred, s. 27 and 38.

[323] _Supra_, pp. 415-416.

[324] This is not the place to enter into the details of the Kentish
holdings, but reference may be made by way of example to the 5½ ‘sulings’
of ‘Christelet’ in the _Black Book of St. Augustine_. The suling is still
the unit for services and payments. The ‘_Suling de Fayreport_’ contains
300 acres (and was probably originally a suling and a half), but it is
divided into 11 holdings, 8 of 25 acres each and 3 of 33⅓ acres each. Six
of the eleven holdings are still occupied by persons bearing the name
of ‘de Fayreport’ or the ‘heredes’ of such persons, and probably the
others may belong to relatives. The ‘_Suling de Ores_’ is, on the other
hand, divided into about 40 quite irregular holdings, varying from less
than an acre to 44 acres. Several are still occupied by ‘heredes’ of
persons of the family ‘de Ores.’ (Cottonian MSS. Faustina, A. 1, British
Museum, fol. 567 _et seq._) The manor ‘de Ores’ is in the list of those
afterwards disgavelled: see Elton’s _Tenures of Kent_, p. 400.

[325] See Mr. Round’s interesting chapter, ‘Sokemen and their Services.’
(_Feudal England_, pp. 28-34.)

[326] _Domesday Book and beyond_, p. 306 _et seq._

[327] _Ibid._ pp. 204-209.

[328] Compare Brunner’s chapter 32, ‘Adel und Freie,’ in his _Deutsche
Rechtsgeschichte_, p. 247 _et seq._, with _Das Römische Recht in den
Germanischen Volksstaaten_, von Prof. Dr. Alfred von Halban (Breslau,
1899), pp. 132, 207, 262, 280, and 294. And see Dahn’s chapter ‘Der
Adel,’ p. 88 _et seq._, in his _Die Könige der Germanen_, Band vi.
(Leipzig, 1885).

[329] Compare the tendency to triple divisions in the Kentish Laws:
_supra_, p. 465.

[330] Marculfe, ii. 18 and 16. _Formulæ Lindenbrogianæ_, 16. And see F.
de Coulanges’ useful chapter on ‘Organisation judiciaire chez les Francs’
in _Quelques problèmes d’histoire_ (1885).




INDEX.


  _Aillts and Alltuds_ (strangers in blood) under Cymric law, 50, 51;
    kindreds of, recognised at fourth generation, 52

  _Alamannic Laws_, 172-178;
    wergelds, 172-175;
    value of animals, 178

  _Alcuin_ uses Roman currency, 19, 184

  _Alfred, K._, his laws, 370-377, 392, 396;
    compact with Guthrum, 352-355, 500

  _Alod of land_, a family holding, 508;
    Lex Salica ‘de alodis,’ 151;
    Ripuarian law, 170;
    Lex Angliorum et Werinorum, 226

  _Ancilla_ as currency, see ‘Cumhal’

  _Anglii and Werini_, Laws of, 224-228;
    Wergelds of _liber_ 200 _sol._, 225;
    triple wergeld of the _Adaling_, 225

  _Anglo-Saxon Custom_, 321 _et seq._;
    from Norman point of view, 321-336;
    from Danish point of view, 337-350;
    from Viking or Northmen’s point of view, 351-368;
    from early custom (Alfred’s Laws), 370-377;
    Archbishop Egbert’s Dialogue, 377-385;
    King Ine’s Dooms, 386-439;
    Kentish Laws, 441-495;
    Twelve-hynde and twy-hynde classes, 406-416;
    Gesithcund and Ceorlisc classes, 417-436;
    Six-hynde stranger class, 371, 392, 396;
    position of wife, 326

  _Anglo-Saxon Wergelds_, position of paternal and maternal parentes in
       payment of, 322, 323, 328, 358;
    of thane or twelve-hynde man, 325;
    of ‘freeman,’ Dane and English, 326, 349, 353-55;
    of ‘cyrlisci vel villani,’ 328;
    of ‘villanus et socheman’ in Danelaga, 331-332;
    of ‘ceorl on gafol-land’ and Danish ‘lysing,’ 353, 355;
    how paid, 329, 357-59

  _Animals_, value of as currency:
    Ripuarian, 171;
    Saxon, 215, 217, 221;
    Alamannic, 178;
    Cymric cow 3 oz., 48, 49;
    Irish _bo_ 1 oz., 97;
    Frisian dog, 202

  _Argenteus_ (silver drachma) of Roman currency.
    See ‘Currency’


  _Bavarian Laws_, 175-177;
    wergelds, 174

  _Beowulf_, evidence of, as to feuds, 56-72;
    as ‘sister’s son’ becomes chieftain, 68;
    as to marriage, 71, 72

  _Borhbryce_, fine for breach of pledge or protection, like mundbryce,
       347;
    of various classes, 377

  _Bullock_ as currency in Saxon Laws, 217

  _Burgundian Laws_, 121-125, 527;
    original wergeld of 160 sol., 167;
    Roman and Christian influence on, 527

  _Burh-bryce_ (_Burg-bryce_) (breach of fence of precinct), of various
       classes, 372, 377, 387


  _Cæsar_, evidence of, as to Gallic wergelds, 115-120;
    and on Gallic landholding, 116;
    as to division of classes, 528

  _Canones Hibernenses_, 101

  _Canones Wallici_, 105-109

  _Ceorl_ = man--husband, 482;
    so man with household and flet or precinct, 371, 394, 482--‘who sits
       on gafol-land’ twy-hynde, 353-355, 361;
    ceorlisc class mostly gafolgeldas, and twy-hynde, 373;
    once could rise to be twelve-hynde, 366, 503;
    accused of theft, 388;
    harbouring a fugitive, 390;
    his mundbyrd in Kent, see ‘Mundbyrd’

  _Chamavi_, laws of, 229-231;
    wergeld of _ingenuus_ 200 sol., 229;
    triple wergeld of ‘Homo Francus,’ 229

  _Charlemagne_, conquest of Italy, 181;
    becomes emperor, 19, 181;
    and issues _nova moneta_ in silver solidi of 12_d._ and at 1:4 with
       gold, 182-194;
    conquers Frisians and Saxons, 182, 195

  _Cnut._ His greater Scandinavia, 339;
    his ore of 1/15th lb. or 16_d._, 341;
    his smaller silver pence, 343

  _Compurgation_, under Frisian law, 203-205;
    under Anglo-Saxon law, see ‘Hyndens’ and see ‘Werborh’

  _Congildones_ = gegildas, sureties in lieu of kinsmen, 323, 389, 415

  _Cows_, as currency, 1.
    In Cymric law, 49;
      Irish, 97;
      Alamannic, 178;
      value of, see ‘Animals’;
      Norse, 247-250;
      Bretts and Scots, 307

  _Cumhal_ in Irish currency, 97-98 = female slave and ‘ancilla’ of the
       _Canones Hibernenses and Wallici_, 101, 109

  _Currency_, in oxen: ox-unit of Professor Ridgeway, 2;
    in cows, Cymric, 1, 49;
    Irish, 97;
    Norse, 247-250;
    Bretts and Scots, 307;
    in cumhals, ancillæ or female slaves, 97-98, 101, 109;
    in gold torques, &c., 17;
    Anglo-Saxon in silver _sceatts_ of 28·8 w.g. or 20 to the Roman ounce,
       12, 443-455;
    in silver _pence_ of 32 w.g. or 20 to the Frankish and Norman ounce,
       12;
    gold and silver _mancus_ of 30_d._, 18, 329;
    Mercian _scilling_ of 4_d._, 12, 363;
    Wessex _scilling_ of 5_d._, 12, 325;
    Kentish _scilling_ of 20_d._, or two gold tremisses, 443-455;
    Northumbrian _thrymsa_ of 3_d._, 362-368;
    Danish in marks and half-marks, 16, 353-354;
    Cnut’s in ores of 16_d._, 306, 341, 343 (see ‘Ore’);
    Imperial in gold solidi and tremisses of 32 w.g., 5, 6;
    in silver sicli (didrachmæ) and argentei (drachmæ), 184, 382;
    Merovingian in gold solidi and tremisses of 28·8 w.g., 9;
    afterwards in silver tremisses, 10, 180, 443-445;
    Charlemagne’s _nova moneta_ in silver solidi of 12_d._ of 32 w.g., 10,
       11, 186, _et seq._;
    of Norse laws in gold and silver marks, ores and ortugs at ratio 1:8,
       233-238

  _Cymric_ tribal custom as to galanas, 30;
    fiscal unit for food-rents, the tref and treffgordd, 33-42;
    strangers, how treated, 50-54;
    as to marriage, 32;
    galanas of several classes paid in cows, 46-55.
    See ‘Gwely,’ ‘Galanas’


  _Danelaga_, 331-332, 338, 522


  _Ealdorman_ in judicial position, 387;
    his burgbryce, 387;
    his fightwite, 394;
    his residence, 420

  _Egbert_, Archbishop, Dialogue of, 377 _et seq._;
    uses Roman currency, 20, 379;
    wergeld of his monks, 382, 491;
    value of their oaths, 379

  _Eye, hand, and foot_, payments for, 175, 222, 225, 252, 300, 465, 489


  _Fightwite_, fine for fighting within a person’s precinct or
       jurisdiction, 328-332, 359, 393;
    in a ceorl’s flet, 371, 394, 482

  _Firma unius noctis_, mode of paying food-rents to chieftain, 41, 431

  _Frankish Tribal Custom._
    Wergeld of Lex Salica of 200 sol., 131-146;
    division of classes, 147;
    triple wergeld of officials, 148;
    half wergeld of strangers, 149;
    the Alod or family holding of _terra Salica_, 150;
    the ‘_de alodis_,’ 151, 170, 226;
    edict of Chilperic, 159;
    Ripuarian Law, 163-171;
    wergeld of 200 sol., 163;
    division of classes, 165

  _Fredus_, payment for breach of king’s peace, equivalent to A.S.
       mundbryce or grithbryce, 488, 489

  _Freedman_ (libertus) under Frankish Law, 168-170, 199;
    under Bavarian Law, 175;
    under Kentish Law, 478, 484.
    And see ‘Læt’ and ‘Leysing’

  _Frisian Laws_, 194-212;
    wergeld of 160 sol., 167, 195, 201, 210;
    ordeal under, 203-5

  _Frith_, between Ethelred II. and Olaf, 349;
    between Alfred and Guthrum, 352-355

  _Frostathing Law_ (Ancient Norse), 238-276.
    See ‘Norse Tribal Custom’


  _Gafolgeldas_, tenants on others’ land paying gafol to their lord, with
       twy-hynde wergelds, 353-355;
    fighting in gafolgelda or gebur’s house, 394.
    See ‘Twy-hynde’

  _Galanas_ (Cymric death fine or wergeld), 30;
    liability of kindred for, 30-32;
    method of payment, 42-46;
    amount of, 46-49;
    of non-tribesmen goes to the lord, 54

  _Gebur_, tenant of a yardland doing work and paying gafol to lord for
       house and oxen, 422-429;
    fighting in house of gafolgelda or gebur, 394

  _Gegildas_ (see ‘Congildones’) sureties in lieu of kinsmen, 323, 389;
    hyndens of frith-gegildas in the city, 415

  _Gesithcund class_, in direct service to the king and twelve-hynde, 366;
    in landed position with five hides to king’s utware, 369;
    forfeit land if they neglect the fyrd, 391;
    in their connection with land, 417 _et seq._;
    sometimes evicted, 433

  _Grith_, Danish for _frith_ or peace, 344-348;
    grithbryce of English and mundbryce of Kentish law the same, 346;
    extent in area, 348;
    in duration of time, 346;
    of different moots, 345

  _Gulathing Law_, oldest Norse law, 238-276.
    See ‘Norse Tribal Custom’

  _Gwely_ (Cymric family holding of four generations), 21-30;
    of non-tribesmen, 52


  _Halsfang_, first part of wergeld paid to those ‘within the knee,’ 328,
       329, 359

  _Hide_ in agriculture of four yardlands, 423;
    Mr. Corbett on tribal hidage, 424;
    in pastoral stage, 424;
    = _familia_ of Bede, also = _hiwisc_, 407;
    also = ‘manentes et tributarii’ of Archbishop Egbert, 381, 408;
    oaths reckoned in hides, 381, 408;
    the 10-hide oath of the twelve-hyndeman, 411;
    oath of himself and hynden of oath-helpers, 120;
    hides, 411

  _Hiwisc_ (family) of land = hide, 364, 381

  _Homicide._ Within the family unavenged, 30, 63, 66, 164, 176, 241, 336;
    by a slave, 108, 202, 333, 472, 474;
    of a slave, 202, 333;
    between kindreds caused blood-feud, see ‘Beowulf,’ or wergeld in lieu
       of it. See ‘Wergeld’

  _Hyndens_ of oath-helpers, 409;
    of twelve-hynde and twy-hynde class, 409-411;
    of city frith-gegildas, 415


  _Ine, K._ Laws of, 386-439;
    as to theft, 387-389;
    burgbryce, 387;
    ealdorman, 387-894;
    gesithcund class, 388, 391;
    six-hynde class, 392, 396;
    gafolgeldas and geburs, 393;
    ceorlisc class, 391, 396;
    wealh and wylisc class, 397-405;
    twelve-hynde and twy-hynde classes, 400-417;
    gesithcund and ceorlisc classes, 417-436;
    comparison of Wessex and Mercian with continental wergelds, 436

  _Irish Tribal Custom_, 73-120;
    the Eric-fine consisting of (1) the _coirp-dire_, or body-price, of
       seven cumhals, 74;
    in Irish and Breton canons, 101 _et seq._;
    (2) the _eneclann_, or honour-price, varies with rank, 75, 80-83, 92;
    the hearths or kindreds liable, 76-80;
    gradations in rank, 83-86;
    grades of tenants, 86 _et seq._;
    currency, 97

  _Kentish Laws_, currency in scætts and scillings, 443-455;
    scilling of 20 scætts or two gold tremisses, 450-455;
    laws of Ethelbert, 455-466;
    of Hlothære and Eadric, 467-476;
    of Wihtræd, 477-481;
    division of classes, 481-487;
    Kentish wergelds, 487-492;
    compared with Continental and Anglo-Saxon wergelds 492-495;
    Kentish sulungs and yokes, 514-515;
    gavelkind holdings, 515;
    Kentish læts, 463, 484-486, 502

  _Kindred_, solidarity of, 30, 45, 157, 276;
    grades of, 22, 30, 76, 318;
    disintegration of, 111, 124, 129, 162, 164;
    emancipation from restraints of, 134, 158, 507;
    power of, in East Anglia and Kent, 415, 416;
    liability of, for wergeld, under Cymric custom, 42, 45;
    Irish, 77-80;
    Breton, 109;
    Burgundian and Wisigothic, 121-130;
    Salic Franks, 144, 164;
    Frisian, 212;
    Saxon, 216;
    Norse, 246-257;
    Scanian, 290, and see ‘Anglo-Saxon wergelds;’
    groups of, holding land, Cymric gwely, 21-30;
    Alod of _terra salica_, 150-162, 183;
    Ripuarian _hereditas aviatica_, 171;
    Norse odal-sharers, 271-275;
    Scanian family holdings, 276-288;
    Anglo-Saxon family holdings, 511-516

  _King’s thane_, oath of, 353, 368, 390


  _Læt_, in Kentish Law of three grades, 463, 484-486, 502.
    See ‘Leysing’ and ‘Freedman’

  _Leases for three successive lives_, tribal reason for, 524;
    St. Oswald’s tenants, 525

  _Leysing_ in Norse law, newly made freedman, his rett, 240;
    his wergeld, 259;
    his want of kindred and his rise by steps of three generations into
       freedom, 260-267

  _Leysing’s son_, great grandson of leysing in higher social position,
       259, 268

  _Litus_, Ripuarian, 168;
    Frisian, 199, 201-207;
    Saxon, 214, 215, 219, 224;
    of Chamavi, 229

  _Lombardic tribal custom_ compared with Scanian as to family holdings,
       292-296

  _London_, ‘De Institutis Lundonie,’ 337-344;
    Port of the Greater Scandinavia in Cnut’s time, 339;
    ‘Judicia Civitatis Lundoniæ,’ 415

  _Lysing_ (leysing of Norse law), with same wergeld as A. S. ‘Ceorl on
       gafol land,’ 353-355, 501.
    See ‘Leysing’


  _Manbot_, payment for value of a man to his lord, 328-332, 359;
    of freeman and of slave compared, 334-335;
    of various classes, 392

  _Mancus_, weight of 30 dwts., 18, 329

  _Mark_, Norse gold and silver weight of eight ores or ounces, 234-237;
    used in Frisia, 207;
    half-marks of gold in compact between Alfred and Guthrum, 353;
    27 marks of Charlemagne= 30 of old Norse and Merovingian, 256

  _Marriage_, how regarded, 498;
    under Cymric custom, 32;
    in Beowulf, 69-72;
    in Lex Salica, 146;
    under Alamannic law, 177;
    under Lex Saxonum, 216;
    under Scanian law, 276-281;
    under Lombardic law, 294;
    under Laws of Bretts and Scots, 318;
    under Kentish custom, 465-466

  _Mercian_ law, fragments of, 360-369;
    Mercian oaths, 360;
    wergelds, 361;
    rise of ceorl into thane, 366

  _Merovingian_ kings, currency of, mostly in gold tremisses, see
       ‘Currency’

  _Mina_, gold value of normal wergeld, 4;
    ancient Eastern of 100 staters, 2, 7;
    of 200 gold solidi, 6;
    _Italica_ of 20 Roman ounces, 14, 491;
    _Attica_ of 16 Roman ounces, 16, 233

  _Mundbryce_ or _mundbyrd_ of king, 346, 377, 451;
    of various classes, 377;
    in Kent, 346, 452, 460, 476, 481, 488


  _Norse tribal custom_, 238-276;
    personal rett, 240;
    wergelds how reckoned and paid, 242-258;
    wergeld of the hauld odalman or typical freeman, 96;
    cows = 200 sol., 259;
    gradations in rank, 260-270;
    the leysing or freedman, 261-267;
    odal-sharers of odal land, 271-276, 284, 504, 508

  _North peoples_ law, fragments of, 360-369;
    wergelds in thrymsas (of 3_d._), 363;
    wergeld of ‘hold’ double that of Saxon thane, 363

  _Nova Moneta_ of Charlemagne, 11, 179-193, and see ‘Currency’


  _Ordeal_ in absence of oaths of kinsmen, 166, 403, 413, 499;
    under Frisian law, 203-205

  _Ore_ or ounce of 20_d._;
    Merovingian = Roman ounce of 20 silver tremisses of 28·8 w.g.
       (1/12 lb. of 6912 w.g.), 10;
    and so also Kentish scilling, 443-455;
    Charlemagne’s and later Anglo-Saxon and Norman ore of 20 pence of
       32 w.g. (1/12 lb. of 7680 w.g.), 11-13

  _Ore_, Cnut’s of 16_d._ (1/15 Anglo-Saxon lb.), 306, 341;
    divided by him into 20 smaller pence, 343;
    used in Laws of Bretts and Scots, 306

  _Ore_, Norse, of three _ortugs_ = 1/12 of Roman lb. 6912 w.g., 234-237

  _Ortug_, of Scandinavia, ⅓ ounce = Greek stater, 233.
    See ‘Ore’

  _Ox_ as currency, 1, 2;
    value of, see ‘Animals’


  _Parage_, tenancy in, 513, 525

  _Pound_, Roman of 6912 w.g., 8, 11, 18;
    Charlemagne’s of 7680 w.g., 11, 18;
    Anglo-Saxon and Norman of 7680 w.g., 12;
    Northern lb. of two marks, 234

  _Ratio between gold and silver_:
    Norse of 1:8, 238;
    Merovingian 1:10, 185;
    Imperial, 1:12, 11;
    Charlemagne’s (attempted), 1:4, 11, 189;
    restored Frankish, 1:12, 11, 191;
    Cymric, 1:12, 49;
    Irish, 98;
    Bretts and Scots, 1:8, 307

  _Romanus possessor_, half wergeld of, 149, 167;
    his _res propria_, 158, 162


  _Saxon Laws_ (Lex Saxonum), 213-228;
    wergeld of liber 160 sol., 214;
    wergeld stated in silver, 214;
    gold solidus of 2 tremisses or bullock, 217

  _Scæt._
    See ‘Currency’

  _Scanian tribal custom._ The _lex Scania antiqua_, family holdings,
       276-288;
    Scanian wergeld, 291;
    Scanian and Lombardic custom compared, 292-296

  _Scilling._
    See ‘Currency’

  _Scotland_, tribal custom in ancient laws of, 297-302;
    the _Regiam Majestatem_, 302-307;
    _Leges inter Brettos et Scotos_, 307-318;
    wergeld of thane 100 cows, 314;
    rules of kindred, 318, 320

  _Siclus_, silver didrachma or ¼ oz. of Roman currency, see ‘Currency’

  _Six-hynde class_, 371, 392, 397

  _Soc and sac_, 330, 348

  _Sochemen_ in Danelaga, 331-332, 522;
    their services, 332 _note_

  _Solidus_ (gold) of Constantine of three tremisses, 7, 9;
    of Merovingian kings, 10;
    of Frisian custom (2 and 2½ tremisses), 197;
    of Saxon (2 tremisses), 217;
    (silver) of Charlemagne ‘nova moneta,’ see ‘Currency’

  _Strangers in blood_, how treated under Cymric custom, 50-54;
    under Irish custom, 90;
    their rights increase with growth of kindred, 51, 90;
    their half wergeld, 401-403;
    galanas and wergeld of, without kindred, goes to the lord, 54, 478;
    ordeal instead of oaths, 166, 403


  _Thane_ = twelve-hyndeman, 325;
    might rise to be an eorl, 368.
    See ‘King’s Thane’

  _Thrymsa_, Northumbrian unit of currency = 3_d._, 362-366

  _Twelve-hynde and Twy-hynde_, 406-416;
    _hyndens_ of oath-helpers, 409;
    full kindred twelve hyndens of oath-helpers, 409-411;
    twy-hynde class, originally the kinless class, as freedmen, 412, 500;
    steps to higher grade, 365-369, 502


  _Werborh_ (wereplegium), 328, 358, and see ‘Hyndens’

  _Wergeld_, death-fine in substitution for blood feud between kindreds,
       see ‘Beowulf,’ and 150;
    liability of kindred for, see ‘Kindred;’
    normal of 100 head of cattle or gold mina, 3;
    of 200 gold solidi, 6, 49, 163, 171, 225, 229, 231, 233, 314;
    of 160 gold solidi, 1, 167, 172, 214, 232;
    Wessex and Mercian and Kentish wergelds compared with Continental
       wergelds, 436-439;
    of various tribes, see names of tribes;
    of clergy, 170, 177, 382

  _Wife_, see ‘Marriage’

  _Wilisc_, _Wealisc_, _Wealh_, non-Anglo-Saxon people, 364-5;
    with five hides to King’s utware, six hynde, 397;
    Gallo-Roman _Wala_, 398;
    _Wallerwente_ of Yorkshire, 399;
    with half wergelds, 401-403;
    _wealh_ gafolgelda, 404;
    Servus Waliscus 333;
    Wilisc witetheow, 404;
    theow-wealh, 405

  _Wisigothic Laws_, 126-130;
    Roman influence on, 527


  _Yardlands_ of gafolgeldas and geburs, 393, 422 _et seq._;
    single succession to, 517-521

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