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.

Tribal Custom in Anglo-Saxon Law Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales' · 第 19 / 22 章