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.