[i]

TRIBAL CUSTOM IN ANGLO-SAXON LAW

[ii]

[iii]

TRIBAL CUSTOM
IN ANGLO-SAXON LAW

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

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

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

[All rights reserved]

[iv]

[v]

PREFACE

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

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

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

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

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

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

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

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

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

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

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

[vii]

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

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

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

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

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

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

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

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

[ix]

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

[x]

[xi]

CONTENTS

[1]

CHAPTER I.
THE CURRENCY IN WHICH WERGELDS WERE RECKONED AND PAID.

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

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

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

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

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

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

Those of the Continental German tribes were generally stated in gold solidi, but the statements were sometimes supplemented by clauses describing the value of the animals, whether oxen or cows,[2] in which the payments were, in practice, still evidently made, at the date of the laws.

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

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

[3]

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

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

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

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

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

In Homer there are indications of the same thing. Lycaon was sold as a captive for 100 oxen and[4] redeemed as a chieftain’s son for 300 oxen—being apparently valued at a threefold wergeld on account of his recognised princely rank.

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

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

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

The ransom of prisoners between certain Greek[5] tribes or states according to Herodotus was two minas, i.e. one heavy mina.[7]

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

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

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

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

The importance of this fact is obvious. For our knowledge of most of the wergelds of the tribes conquered by the Merovingian Franks and later on by Charlemagne is dependent upon it, inasmuch as the laws in which the customs of these tribes were in[6] some sense codified, almost always describe the wergelds in gold solidi.

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

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

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

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

[7]

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

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

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

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

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

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

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

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

III. THE FRANKISH CURRENCY.

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

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

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

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

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

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

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

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

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

[11]

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

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

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

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

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

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

(1) As regards the laws, the recensions of which date from Merovingian times, it will be necessary to[12] ask whether the solidi and tremisses were of Imperial or of Merovingian standard.

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

IV. THE NORMAN AND ANGLO-SAXON CURRENCY.

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

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

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

If we examine the actual coinage of the Anglo-Saxons we find that, like that of the Franks, it may be divided into two periods. The earlier one corresponded to the Merovingian period during which the penny or sceatt of Mercia and Wessex was of 28·8 wheat-grains, like the silver tremisses or pence[13] across the Channel.[11] The later period commenced when Offa in Mercia, followed by Alfred in Wessex, abandoned the ‘sceatt’ and issued pence like those of the nova moneta of Charlemagne of 32 wheat-grains.

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

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

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

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

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

We have seen that the commonly prevalent wergeld of 200 gold solidi was in fact the same thing,[14] in wheat-grains, as the heavy Eastern and Greek gold mina of 19,200 wheat-grains. But besides this, there were two other minas of interest to this inquiry which seem to have been more or less locally in use, and more or less connected with the wergelds.

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

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

[15]

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

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

So much for the mina Italica and its possible Anglo-Saxon and Celtic connections.

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

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

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

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

In that compact we shall have to recognise not only the contact of two methods of monetary reckoning widely separated in origin, the one of gold and[17] the other of silver, but also the clashing of two traditional ratios between the two metals, viz. the Scandinavian ratio of 1:8, and the restored Imperial ratio of 1:12 followed by the Anglo-Saxons.

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

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

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

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

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

Whether the true meaning be six hundred sceatts or[18] six hundred scillings, we have here a beag with its weight marked upon it.

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

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

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

Alcuin, who had long resided at the Court of[19] Charlemagne, was now lying ill at Tours. In order to consult him, probably respecting the Imperial title, Charlemagne, with his queen Liutgarda, proceeded to visit him at Tours. Liutgarda was apparently taken ill while there, and died June 4 A.D. 800.

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

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

And yet, though writing from Charlemagne’s Court, Alcuin, when addressing his ecclesiastical friends in Ireland, no longer used the terms of the Frankish currency. It was after all a local one. Charlemagne’s Empire had its limits, and Ireland was beyond them. The area of ecclesiastical rule was wider than both Empires put together. Alcuin writes that he and his Imperial master had distributed among the Irish monasteries so many sicli of silver.[20] The siclus, according to the authorities collected by Hultsch,[19] was equal to two Roman argentei or drachmas of silver. So that Alcuin used the di-drachma or stater of Roman reckoning as fixed in the time of Nero, when corresponding with churches outside the Empire of his Frankish master.

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

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

[21]

CHAPTER II.
SUMMARY OF THE CYMRIC EVIDENCE.

I. THE UNIT OF CYMRIC TRIBAL SOCIETY.

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

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

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

[22]

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

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

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

Returning to the gwely, we find that when a child was born into it, whether boy or girl, it was formally acknowledged by the kindred. It remained ‘at the father’s platter’ to a certain age (generally 14), and then the father ceased to be responsible. The boy at 14 became the ‘man and kin’ of the chieftain of the family group, or it might be of the higher kindred[23] embracing several of the gwelys. From that moment the boy obtained by ‘kin and descent’ a tribesman’s right of maintenance. That is to say, he received from the chieftain his da, probably in the form of an allotment of cattle,[21] and with it the right to join in the co-ploughing of the waste. He became thus a tribesman on his own hook, apart from his father. So that the unit of society was not simply the family in the modern sense of a parent and his children, but the wider kindred of the gwely or the group of related gwelys headed by the chieftain who provided the da.

II. THE CONSTITUTION AND WORKING OF THE GWELY.

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

Viewed in its simplest, and perhaps original form,[24] it was a family group of four generations, the landed rights of which were vested in the great-grandfather as its chieftain.

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

At the date of the codes it did so when the tribesman died without issue. But in the codes a peculium of private property of which the da was the kernel is recognised and allowed to descend to a tribesman’s children instead of falling into the common stock.

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

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

[25]

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

Even after this innovation, if a brother had died without issue, his brothers as brothers did not at once succeed as co-heirs. The share fell into the common stock till a division, and then went to all the co-inheritors per capita, so that cousins, and it might be even second cousins, took their shares in it.

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

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

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

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

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

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

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

[28]

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

Next let us see what happens when all the grandsons are dead and the final division per capita takes place. There are nine great-grandsons. Is the gwely of X now to be divided into nine new gwelys? Certainly not. The grandsons of A are entitled to 3-9ths only, and this they divide per capita, being first cousins; one family takes 1-3rd and the other 2-3rds. The portion which has fallen to them of family rights in the gwely of X has become a separate[29] gwely, called either the gwely of A or, as we sometimes find in the Denbigh Survey, the ‘gwely of the grandsons of A’—‘gwely weiryon A.’ The other portion has become either the gwely of B or the gwely of the grandsons of B—‘gwely weiryon B.’

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

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

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

Finally, the position of females in the gwely should not pass without recognition. They are not mentioned in the statements of landed rights because, provision having been made for their maintenance independently of their father, they were assumed, whilst claiming their ‘gwaddol’ or portion, to take[30] this with them, on marriage, out of the gwely. They ought to be married into another gwely, within which their sons in due course would receive inheritance and landed rights by paternity. Only on failure of this could their sons claim landed rights by maternity in their mother’s original gwely.[25]

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

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

We find from the Cymric Codes that the members of the wider kindred had common responsibilities in case of a homicide causing a blood feud between kindreds. A murder within this wider kindred was regarded as a family matter. The murderer was too near of blood to be slain. No atonement could be made for so unnatural a crime. There was no blood fine or ‘galanas’ within the kindred. The murderer must be exiled. But a murder of a member of one kindred by the member of another, inasmuch as, if unatoned for, it would under tribal custom have produced a blood feud between the two kindreds, was the proper subject for the substituted payment of the blood fine or ‘galanas.’ The galanas was thus a payment from one kindred to another in lieu of the blood feud. But its amount was divided in payment on one side and in distribution on the other, in[31] varying proportion according to nearness of relationship to the murderer or the murdered person as the case might be. And in these payments and receipts all the individual tribesmen within the kindred who had received their da must take their share if needful.

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

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

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

[32]

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

These points are in a sense unexpected. They belong to a stage of social life as far removed from[33] Roman rules, or modern ones, as they are from the stage in which a wife was either purchased outright or stolen. And yet we shall find them in principle more or less clearly repeated in the varying customs of some of the tribes whose laws we are about to examine.

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

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

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

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

Further, the Denbigh Extent shows how easy it[34] was to shift the whole body of tribesmen of this or that gwely, with its herds, from one district to another, according to convenience or the needs of population, without disturbing the complex rights within the gwely. The families and individuals carried their rights, inter se, with them wherever they and their herds might go, and were liable to pay the dues required from whatever villata for the time being might be occupied by them.

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

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

Now, as in the surveys the family groups or gwelys were located so as to occupy sometimes[35] several villatæ, and sometimes undivided shares in villatæ along with others, so, if we may take the villata of the surveys as equivalent to the tref or maenol of the Codes, we must expect to find that the kindreds of tribesmen at the period of the Codes were scattered in the same way over the trefs and maenols. And, as the maenol was a group of trefs, the tref is the unit of tribal occupation as to which a clear understanding is most necessary. In this, however, we may be, after all, only partly successful.

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

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

[36]

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

The typical lawful trefgordd is thus described:—

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

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

The description above quoted of the normal trefgordd suggests that the herd under the one herdsman did not belong to one person or homestead, but to many; and so far it seems to be consistent with the surveys which represent the[37] villatæ as occupied by the cattle of several family groups who had grazing rights therein.

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

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

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

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

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

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

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

Thus in the Denbigh Extent it is mentioned that the whole villata of Arquedelok was in manu domini by reason of escheats and exchanges, and that a portion of it was let ad firmam to nine firmarii, each of whom held for a term of years 31 acres, with one bull and 24 cows, paying per annum 73s. 4d., and rendering to the lord at the end of his term the said bull and cows or their price, together with the land and a house built thereon.[40] Here, even in a case in which Henry de Lacy was introducing into Wales holdings and herds in severalty, and very possibly introducing English tenants, he adhered to the Welsh[39] tribal rule of the one bull and 24 cows to the herd. So also in the survey of St. David’s, under the head Glaston in Breconshire, the number 24 of grossa animalia is spoken of as the usual number ab antiqua consuetudine, and in the arrangement of common pasture one great animal is said to count as equal to twelve sheep.

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

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

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

The trefgordd possessed further a common churn. This implies that the milk of the cows was thrown altogether into this one churn as in Swiss mountain communes now. One of the dues from a taeog trev, i.e. a group of non-tribesmen, was a cheese made from[40] a day’s milking of all the cows in the herd. So that we note in passing that the taeog-tref, i.e. of non-tribesmen, also had its herd and was in fact a trefgordd.[43]

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

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

The attempt to realise what this practical unit—the trefgordd—was, will not be thrown away if it should help us to understand how easily it lent itself to the arrangement of the chieftain’s food-rents or tribute in after-times of taxation. Granted that some such system of trefgordds or clusters of trefgordds pretty generally prevailed, having grown up as a matter of convenience in a grazing community, it is obvious how easily it might become the unit of tribute or taxation. Just as in the Domesday[41] Survey the number of ploughs affords such a unit, so in a tribal community a district might easily be fiscally estimated at so many herds, or so many churns, or so many ploughs. All these would mean so many trefgordds. And whatever the relations of the trefgordd to the villata of the surveys might be, and however much or often the actual residents, with their herds, might be shifted from one district to another, the district, as in the Denbigh Extent, would remain the permanent unit for payments.

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

And when the power of the chieftain had grown with time, and instead of ‘nights’ entertainments’ obtained in the primitive way by the actual movement of himself and his retinue from place to place, the food-rents or the tunc pounds in lieu of them were delivered at his palace, he would become the recipient of a regular revenue. And out of this revenue it would become easy for him to reward a follower or endow a church by the transfer of so many food-rents or tunc pounds in lieu of them, or the revenue from[42] such and such a district, or of so many of its trefgordds, without disturbing the internal working of the system or the daily life of the tribesmen and their herds. When Beowulf returns to his chieftain after his exploit and is rewarded by the gift of a palace and so many ‘thousands,’ we naturally ask of what, and how it could be done. We may not be able to say off-hand what the unit was, but we get from the Welsh example some rough idea of what tribal tribute and income were, and how these could be readily gathered and transferred.

V. THE METHOD OF PAYMENT OF GALANAS BETWEEN KINDREDS.

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

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

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

[43]

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

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

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

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

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

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

[44]

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

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

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

In the first fortnight the kindred on the father’s side had to find half what was due from them. In the second fortnight they had to find the other half,[45] and in the third fortnight the maternal kindred had to find their share, till so at last the full tale of the 120 cows was paid. The oath of peace from the kindreds of the murdered man could then be given, and the murderer and his kinsmen, be at peace.[49]

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

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

In Cymric tribal society this was made possible by the broad fact that both males and females in the group of kindred, on both paternal and maternal sides, liable to pay, had cattle of their own in the common[46] herd, each having received his or her da for maintenance by right of kin and descent from the common ancestor or chieftain of the kindred. The two things surely hang together. And therefore, if we find in the laws of other tribes somewhat similar rules regarding the payment of wergelds, it probably will be worth while to inquire further whether the corresponding structure of tribal society, or something more or less equivalent to it, may not be present also.

VI. THE AMOUNT OF THE CYMRIC GALANAS.

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

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

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

So also in the Gwentian Code:—

[47]

So also in the Venedotian Code:—

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

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

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

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

But of what cow? How was the normal cow for practical purposes to be defined? It is a question worth answering, because we may probably take the Cymric method, of valuing the cow as a unit of[48] currency in cattle, as at any rate suggestive of the methods generally adopted by other tribes.

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

Then the milk measure is described thus:—

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

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

Returning to the galanas; although it was reckoned in the Codes in scores of cows, a fixed[49] equation had already been made between cows and silver.

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

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

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

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

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

[50]

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

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

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

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

In Welsh tribal custom alltuds or strangers and[51] their descendants (not necessarily otherwise unfree persons) having some special circumstances in their favour, being allowed to settle within the district of a greater or lesser chieftain upon land which, in a sense, may have been his demesne land, were free to remove and settle under another chieftain, unless and until they had remained on the same land or under the same lordship for four generations. But thereafter the great-grandchildren of the original settlers became adscripti glebæ. And this fixture to the land, or rather to the lordship, was apparently not looked upon as in any way a degradation in rank, but on the contrary a step in advance towards the recognition of tribal rights. The great-grandson of the stranger did not indeed become a Cymric tribesman, but he gained the recognition of his status as the founder of a kindred of his own, the members of which in after-generations would, as kinsmen, be able to swear for and defend one another.

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

The fixture to the land of the aillt or taeog was not the special mark so much of a semi-servile condition as of his want of recognised kindred, and under the local custom of South Wales it seems that he too, like the alltud, could sometimes arrive at the recognition of kindred, without indeed becoming a Cymric tribesman, at the end of four generations of residence under the chieftain of the land; and even[52] to further recognition of it, involving a still better position as to rights, at the ninth generation. The ninth man in South Wales seems according to local custom in some districts to have, at last, climbed the highest rung of the ladder, and to have attained the right to claim the status of a Cymric tribesman.

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

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

If under the guidance of the Codes we turn to the extents and surveys, we find them living, in some cases, not mixed up with the tribesmen, but in separate groups, or trefs, or trefgordds. There may be here and there exceptional alltuds or strangers of a higher class growing up, by the gradual process of intermarriage for four generations with tribeswomen, into the status of tribesmen. But the mass of the stranger class were aillts and taeogs living in separate taeog trefs, though, according to the surveys, sharing, often in common, certain rights of grazing over certain districts with gwelys of tribesmen. Now these groups of taeogs and aillts were, according to the Codes, as we have seen, of two classes, and we[53] recognise the same two classes when we find in the surveys not only groups of taeogs in taeog-trefs but also gwelys of non-tribesmen.

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

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

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

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

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

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

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

And once more the fact should never be lost sight of, that the gradual growth into tribal or quasi-tribal rights was not a growth into exactly what in a[54] modern sense would be called individual freedom. It was accompanied by the growth of ties which bound the family to the chieftain, till at the moment that at the fourth generation the recognition of rights of kindred was attained, the family found itself, as we have seen, so closely tied to the chieftain and the land that the newly recognised gwely had become adscriptus glebæ.

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

The free tribesman is the man who belongs to a kindred who can protect him by oath and by sword. Until a stranger has kinsmen who can do this he is an odd or kinless man, protected only by his lord. If he be killed his galanas goes to his lord; he has no recognised kin to receive it. If, on the other hand, he is charged with slaying another, he has no kin to swear to his innocence, the oath of a non-tribesman not being held good as against a tribesman. If guilty, he has no kin bound to fight in the feud for him, or to help him to pay a galanas for his crime. So that even when at the fourth generation the descendant of the alltud becomes the founder of a gwely he has gained only half the status of a tribesman. It is not till the fourth generation of descendants in the gwely, i.e. the seventh generation from the original settler, that a complete kindred has grown up. It is not till then that the descendant of the original alltud is surrounded by a full group of relatives, born in his great-grandfather’s gwely, whose oaths can be taken and who can protect him by oath and sword or in payment of galanas. All this time the alltud family have been more or less dependent on[55] the protection of the chieftain, and rights and obligations are apt to be correlative.

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

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

[56]

CHAPTER III.
THE EVIDENCE OF BEOWULF ON TRIBAL CUSTOM REGULATING FEUDS &c.

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

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

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

Beowulf for the present purpose may be taken as[57] an Anglian or Northumbrian recension of a story founded upon Scandinavian tradition, and designed for use or recital at some 8th century royal court—possibly, if Professor Earle’s suggestion be correct, that of King Offa.

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

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

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

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

The evidence it gives is made all the more[58] valuable by its being an Anglian version of Scandinavian traditions, inasmuch as the poet, or his Anglian interpreter, assumes throughout that the laws of the game, under Scandinavian tribal custom, were too well known to need explanation to his Anglian audience. So that by inference it would seem that the customs of Baltic chieftains were familiar at the court of Offa, and not very far removed from those of Anglian tradition.

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

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

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

[59]

[60]

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

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

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

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

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

[61]

Second family of Wægmundings.

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

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

[62]

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

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

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

This seems to be the pedigree.

Beowulf is made to say that, when seven winters[63] old, Hrethel had received him from his father Ecgtheow and had kept him as his own child (2420). ‘Remembering kinship’ (sippe gemunde), the old chieftain held him in no less regard than his own three sons, Herebeald, Hæthcyn, and Hygelac. But Hrethel’s old age was full of trouble. The worst tragedy that came upon him was the death of his eldest son Herebeald, killed by his second son apparently by accident.

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

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

Thus incidentally is revealed by the poet the depth of the tribal feeling that homicide can only be atoned for by avengement and feud, making it a hard struggle against nature for a father to withhold revenge upon a son for even accidental fratricide. As with the Cymry, it seems that there could be no[64] feud or composition within the family. Nor in the case of accidental homicide was there apparently in the poet’s mind the necessity of flight or outlawry, however great the craving for avengement. It is also significant that Hæthcyn, the slayer, is made to join with his brother Hygelac in the next warfare after Hrethel’s death (2474). The accidental slayer remains a tribesman.

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

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

All this irregular fighting, incidentally mentioned by the poet, was past before Beowulf’s great enterprise[65] against the monster Grendel. And, as we have seen, it was as the ‘man and kin’ of Hygelac that Beowulf appeared at Hrothgar’s court. And it was at the feet of Hygelac as his chief of kin, and at the feet of Hygd his queen, that Beowulf laid down his treasures on his return in safety. This exploit ended, Hrothgar thenceforth disappears from the poem, and the poet confines himself to Beowulf’s nearer belongings.

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

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

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

The facts, when unravelled, seem to be these:—Within Beowulf’s paternal kindred trouble had arisen. For some cause not told, the grandsons of Ongentheow (sons of Ohthere) had been outlawed. They are described as wräc-mäegas (2380) and as having cast off allegiance to the chieftain of the Scylfings. These outlawed kinsmen of Beowulf’s paternal family came to young Heardred’s court, and whilst his guests (‘on[66] feorme’) the young chieftain fell by the sword of one of them (2388).

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

Avengement is made to follow too in the same way upon Eanmund the murderer. It came from Beowulf’s paternal uncle, Weohstan. But here again the poet is careful to record that it came not in a blood feud, but ‘in fair fight’ with weapon’s edge (2612). And, as if to emphasise the fact that the outlawed kinsman had forfeited all tribal rights, the poet adds that ‘Weohstan from his kindred carried off the armour and sword of Eanmund, Onela (Eanmund’s uncle) yielding them up to him without a word about a feud, although he (Weohstan) had slain his brother’s son’ (2620).

Evidently the poet means to make it clear that Onela’s passive attitude was due to the fact that his[67] nephew was a lawless exile, and so no longer entitled to protection from his kin (2612 and 2380).

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

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

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

Why had he done this? If we might tentatively[68] use the clue given by ancient Greek tribal custom to elucidate a Scandinavian case, we should say that on failure of male succession the ‘sister’s son’ of Hygelac had been called back into his mother’s kindred to become its chieftain, leaving Wiglaf, his next of kin on his father’s side, to sustain the chieftainship of his paternal kindred. The right of the maternal uncle, known to have existed under early Greek law, to claim his ‘sister’s son’ if need arose, to perpetuate the mother’s paternal kindred, suggests a similar explanation in Beowulf’s case. Such a right, found as well in the Laws of Manu, may possibly have been inherent in Scandinavian tribal custom also. Such a suggestion would be at least consistent with the fact of Beowulf’s having been brought up from seven years old in the household of his maternal grandfather, and treated by him as a son. It would be in harmony, too, with what Tacitus describes to have been the relation of the ‘sister’s son’ to the avunculus amongst the German tribes, and the peculiar value of the ‘sister’s son’ as a hostage.[60]

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

Heardred, the young son of Hygelac and Hygd his queen, after his father’s death is spoken of no longer as Hygelac’s son, but as the nephew of Hereric, ‘nefan Hererices’ (2207). Now his paternal uncles were Herebeald and Hæthcyn, and it becomes an[69] almost necessary inference that Hereric was a maternal uncle. Thus:

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

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

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

[70]

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

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

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

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

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

(2) Marriage between two kindreds is a common[72] though precarious means of closing feuds between them. The son of such a marriage takes no part in a quarrel between his paternal and maternal relations.

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

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

[73]

CHAPTER IV.
TRIBAL CUSTOM OF THE IRISH TRIBES.

I. THE ERIC FINE OF THE BREHON LAWS.

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

If the theory of the emigration from Wales and Cornwall into Brittany, as the consequence of the Saxon invasion, be correct, the Britons who emigrated into Brittany may never have shared the peculiar customs of the immigrants into Wales following upon[74] the conquests of Cunedda and his sons. They may have had more in common with the Goidelic tribes of South Wales than with the Cymric newcomers into Wales.

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

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

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

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

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

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

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

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

Next as to the persons liable for its payment.

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

As to crimes of non-necessity:—[65]

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

[76]

Lastly, failing both the son and the father,

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

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

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

Whether this interpretation of the Brehon scheme[77] of the divisions of the Irish fine or kindred be correct in every detail I shall not venture to give an opinion, further than to say that, viewed in the light of other tribal systems, it seems to me to be nearer the mark than the various other attempts to make intelligible what after all are very obscure passages in the Brehon Laws. The seventeen persons making up the four divisions of the fine or kindred must be taken, I think, as representing classes of relations and not individuals; e.g. under the head ‘first cousin’ must be included all ‘first cousins,’ and so on throughout.

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

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

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

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

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

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

[79]

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

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

The following passage makes this clear:—

A still clearer indication of this solidarity of the family or kindred occurs in the Book of Aicill (p. 541) in regard to the right of the several members, according to relationship, to share in composition for a kinswoman abducted without their consent. If taken without her own consent, honour-price was to be paid to herself, and also honour-price was to be paid to her chiefs, and her relations, according to the nature of their relationship to her. This presumably was for the breach of their protection. Should death overtake her before she was restored, coirp-dire and honour-price were to be paid to her family. In case[80] of her consent it was the same except that she could claim no honour-price for herself.

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

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

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

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

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

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

II. THE HONOUR-PRICE (ENECLANN).

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

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

In the first place, according to a passage in the Book of Aicill, it is the honour-price of the slayer[81] that had to be paid, i.e. the higher the rank of the slayer the greater the payment to the kindred of the person slain.

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

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

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

But besides this honour-price of the criminal, as we have seen, other payments had apparently to be made to the relatives of the slain, for breach of their protection or for injury sustained, and these were[82] measured by the honour-price of the recipients and not by that of the criminal.

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

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

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

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

On the whole it may be gathered from the Brehon[83] tracts that, whilst the coirp-dire or body fine was a fixed amount, the eric or full payment was complex, involving, besides the coirp-dire, the honour-price of the slayer according to his rank, and also payments to the relations of the slain, regulated by their honour-price and rank, and nearness of relationship to the slain person, by way of reparation for the insult or injury involved, or for breach of their protection, &c.

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

III. THE GRADATIONS IN RANK UNDER THE BREHON LAWS.

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

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

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

Suddenly, we are told of the og-aire that he has seven cows and a bull, seven pigs, seven sheep, and[84] a horse. He also has a cow land, i.e. land to graze seven cows, for which a cow is paid every year by him to his chief. He has an ox, and a fourth part of the needful for ploughing: i.e. presumably he joins with others in making up a plough team of four oxen. Surely these have been supplied to him by his chief, as in the case of the Cymric ‘da.’ His proportionate stock (turcreicc) is eight cows, which with his land he gets from a bo-aire, possessed of surplus cattle, and he pays to him a food-rent ‘bes tigi’ (like the Welsh gwestva) of a cow and a pig, &c. Should his stock increase he does not always become at once a bo-aire, ‘because four or five such may occupy the land of a bo-aire, and it would not be easy for each of them to be a bo-aire’ (iv. pp. 305-309).

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

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

[85]

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

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

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

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

The aire ard has twenty tenants, ten giallna and ten saer, and in his turn he takes proportionate stock from his chief (iv. p. 325).

The aire tuisi has twenty-seven tenants, fifteen giallna and twelve saer, and he takes himself proportionate[86] stock from a king, ‘and he makes corus-arrangements in the raith right of his father and grandfather,’ whatever this may be (iv. 325).

Above him is the aire forgaill, with forty tenants; and at the head of the flaith or chieftain grade comes the Ri-tuaithe, who is the chief or King of a Tuath.

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

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

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

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

In the saer-raith the stock is given without any pledge, and the return for it is one-third in value as food-rent every year, and the tenant has to perform what is translated as homage, and to do service on the dun-fort, at harvest time, and on military expeditions, but he does no manual labour. The[87] saer tenant cannot separate from his own hereditary tribal chieftain, or refuse to take stock from him, and to that extent he seems to be adscriptus glebæ. But if he chooses to receive stock from another chief he can give it up when he likes, unless not having returned it for three lifetimes, he has let the chief get a permanent hold on him, but this must not be so as to rob his own tribe of their innate rights (p. 219). This freedom to take stock from other chieftains does not, therefore, seem to alter his position or that of his successor as permanent tenants of their own hereditary chieftain. And this applies both to his higher chieftain of kingly rank, and his own lesser chieftain of flaith rank.

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

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

[88]

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

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

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

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

It occurs in the commentary:—

[89]

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

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

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

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

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

In the Editor’s note (p. 350) to the sequel to the ‘Crith Gabhlach,’ there is a statement that the sencleithe tenant was a man who came from his natural chief to settle under another chief; and if he or his successors continued away during the time of three successive chiefs, with the knowledge of the former[90] chief, and unclaimed by him or his successors, he or they then became ‘sencleithe,’ and could not go away of themselves nor be claimed by the other.[74]

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

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

[91]

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

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

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

[92]

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

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

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

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

On the other hand, whilst the honour-price of a[93] tribesman or chieftain was the limit up to which his power of giving protection to his fellow-tribesmen by oath or pledge or otherwise extended, it also was the measure of his own protection. He was entitled to his honour-price not only in case of homicide. If he was satirised or insulted, or if the protection he afforded to others was violated, or his house was burned, or any one stole from him, out of his house or in it, or forced his wife or his daughter, his honour-price was the measure of the amount of redress he could claim for the wrong. The analogy of this to the Cymric saraad is obvious, and something like it is found in most tribal systems.

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

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

[94]

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

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

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

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

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

[95]

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

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

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

On the other side the Feini claimed as follows:—

This seems to have settled the matter between the two tribes; i.e., so to speak, the public matter between the Feini and Fergus’s people. But there were[96] individual rights to be considered also. Besides these 23 cumhals due to his tribe,

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

The commentary goes on to say:—

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

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

[97]

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

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

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

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

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

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

This Irish equation between cattle and silver must surely have been made at a time when silver[98] was of quite exceptional value in Ireland. But there is some reason to believe that an earlier equation had been made with gold of a very different character.

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

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

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

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

We have seen that in the Brehon Laws the[99] smallest silver unit was the screapall or scripulum. And it has already been mentioned that the scripulum was also known as the denarius Gallicus, of which 24 went to the Roman ounce of 576 wheat-grains, as in the Brehon Laws, and that a score of ounces made the mina Italica of twice 5760 wheat-grains. It is curious to find in a passage quoted by Petrie[77] from the Fodla Feibe in the Book of Ballymote,[78] a full and exact appreciation of the number of wheat-grains in the scripulum and the Roman ounce. The wheat-grains, according to this passage, are to be taken from wheat grown on typically rich soil which produces ‘the three roots,’ and 24 wheat-grains are the weight of the ‘screapall’ of silver, and 576 the weight of the ‘uinge’ or ounce. Further it is stated that the full weight which the Tinde or weighing bar is to weigh is—not a pound: there is no mention of the pound—but seven score ounces.[79] Now this reckoning, not in pounds, but in scores of ounces, has already been alluded to as, consciously or unconsciously, a reckoning in so many of the mina Italica. Petrie quotes a passage from the ‘Annals of the Four Masters’ in which this payment in scores is illustrated.[80]

[100]

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

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

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

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

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

[101]

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

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

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

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

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

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

The clause is as follows:—

Ecclesiastical usage retained to some extent the use of Roman phraseology. The siclus or sicilicus, as we have already seen, was the didrachma of two Roman argentei or silver drachmæ. And as the drachma after Nero was one eighth of the Roman[102] ounce, so the siclus was one quarter. The Altilia was the ‘fattened heifer’ possibly of Irish custom.[84] Twelve fattened heifers or sicli equalled therefore three Roman ounces—i.e. the exact silver value of the cumhal of the Brehon Laws. Here, therefore, in these so-called Irish Canons the ancilla seems to be reckoned at the Brehon silver value of the cumhal.

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

In title III., headed ‘Synodus Hibernensis decrevit,’ are the following:[85]—

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

These passages seem to have a curious correspondence[103] with the following passage in the Brehon Laws (sequel to the ‘Crith Grabhlach,’ iv. p. 363):—

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

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

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

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

In title IV., Dejectione, after a clause stating that he who ejects a poor man kills him, and he who[104] meets a person ready to perish and does not succour him kills him, there follows this clause:—

Here the ordinary ‘pretium sanguinis’ or coirp-dire is again clearly reckoned at VII. ancillæ, and the bishop, being of the seventh grade of rank in the ecclesiastical hierarchy, is to be paid for sevenfold.

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

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

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

Yet another clause in these canons seems to show that not only the coirp-dire of seven cumhals was[105] familiar to the makers of the canons, but also the honour-price.

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

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

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

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

It is perhaps possible with help from another set of canons to obtain further evidence of Celtic usage[106] as to the fine for homicide, and what is still more to the point, to trace it back to the Continental side of the Channel.

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

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

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

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

It may seem presumptuous to doubt their Welsh origin after the opinion expressed both by Wasserschleben and such competent authorities as Haddan and Stubbs, to whose labours the student is so greatly indebted. But that opinion is doubtfully expressed,[107] and reference is made by them to the fact that two of the three MSS. describe the collection of canons not as ‘Canones Wallici’ but as ‘excerpta de libris Romanorum et Francorum,’ and ‘excerpta de libris Romanis et Francorum’ while the third, of the 8th century, does not seem to have any heading but ‘Incipit justicium culparum.’ Haddan and Stubbs assign the origin of these canons to that period (c. A.D. 550-650) during which both the Welsh Church and the Welsh Principalities appear to have become organised, i.e. to the period following St. Patrick and St. Finian, during which the monastic churches of South Wales were the channel of intercourse between the Breton and Irish Churches. This collection, according to the same authority, may date from the 7th century.

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

When we come to examine them, they bear every evidence of being ‘excerpta,’ and we know from the excerpta of Isidor what different materials may be brought together in such a collection. There is no continuous plan or order apparently running through the whole. And certain of the canons, chiefly those relating to homicide, seem to be marked off from the remainder by the payments being made throughout in ‘ancillæ’ and ‘servi’; whilst in most others the payments are made in libræ argenti or in libræ stagni, or occasionally in solidi, unciæ, and scripula.

The safer course may be, therefore, to treat them,[108] not as a consistent and single set of canons, but as excerpta from various sources.

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

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

Now, looking at these canons alone, two facts point very strongly to an Irish rather than a Welsh connection, or perhaps we ought to say, to a Goidelic rather than Cymric connection. In the Brehon Laws, as we have seen, the payments are made in cumhals or ancillæ, and the fixed wergeld or coirp-dire is strictly speaking six ancillæ, and one added for a special object, making seven cumhals in all. In the Cymric Codes, on the other hand, the galanas is paid in cows and never in ancillæ, and the amount of the[110] galanas is graduated according to rank, that of the lowest and youngest tribesman being 60 cows, nearly three times as great as the six ancillæ and servi of these canons.

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

But whether the payment for homicide in the ‘Canones Wallici’ be the coirp-dire of the Brehon Laws or not, if we may recognise in these rules as to homicide the customs current in some degree on both sides of the Channel, let us say from the fifth to the seventh century, we cannot also fail to recognise in them evidence of influences at work which have broken away partly from tribal usage, and which hail, not from the primitive tribal instincts of Irish or Gallic tribes, but from the side of Roman and ecclesiastical law, to which the districts alluded to had long been subject.

We shall see more and more how foreign the tribal instinct of the solidarity of the kindred, and the consequent obligation on the whole kindred for the whole composition for homicide, were to Roman law and Christian feeling, and how soon under these influences the disintegrating process began in Gallo-Roman[111] districts, causing the solidarity of the kindred to give way.

The solidarity of the kindred is partly recognised in these canons, but it is also partly ignored.

The 12th canon states, as we have seen, that if the murderer had taken flight his parentes had fifteen days allowed either to pay part and be secure, or themselves leave the country. What part? The clause states that if the murderer wished to return from his exile he might pay the half that remained, and thereafter live secure. So that it would seem that the kindred were only liable to pay half, instead of the whole coirp-dire of six ancillæ and servi. If, in the meantime, the murderer was killed, presumably by the parentes of the slain, the slaves, or whatever else had been received by the parentes of the slain from the parentes of the slayer, had to be restored to the latter, the feud having been satisfied by his death at their hands.

In the Brehon Laws as in the Cymric Codes, the solidarity of the kindred was complete. As we have seen, under Irish custom the whole kindred of the four nearest hearths were liable for the payment of the coirp-dire for unnecessary homicide. But the fact that the payment of wergelds was foreign to Roman law, combined with the claim of the Church to protect from death criminals taking refuge at the altar, had no doubt in Northern Gaul, as we shall find was the case in Southern Gaul also, already begun to break up to some extent the tribal solidarity on which joint liability for the payment of wergelds was based.

Those criminals who claimed protection at the altar were, under Gallic ecclesiastical usage, as we[112] shall see, saved from death, but at the same time handed over as slaves to the parentes of the slain. And it is not difficult to detect the lines of thought leading to this result. In the ‘Penitentials’ attributed to St. Finian,[91] the spirit in which the missionary churches of Brittany, Wales, and Ireland, from their clerical point of view, dealt with crime very clearly appears. A layman, in addition to making composition to the injured person, should also do penance; but a cleric who possessed no property of his own could not pay the composition (s. 9, p. 110). What, then, was he to do in a case of homicide? The penitential (s. 23) lays down the rule:—

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

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

The connection, though traceable only through[113] ecclesiastical channels, seems to establish a continuity as regards the fixed payment for homicide between the Breton and Irish churches, and possibly the churches of the Goidelic portion of South Wales, of the fifth and sixth centuries.

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

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

And again, if St. Patrick in his ‘Confessions’ (a work the authenticity of which is generally[114] accepted) could use, as he did, the pretium hominis as a well-known unit of payment, it would seem that at least as early as the end of the fifth century the value of the pretium hominis as a unit of payment was perfectly well understood. And this in itself is a proof of further antiquity.

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

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

[115]

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

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

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

On the occasion of any murder committed, there would be plenty of room for controversy whether the wergeld were fixed or graduated according to rank, or even, as is quite possible, left open to the judgment of the Druids. So that we gain nothing from Cæsar’s evidence on this particular point,[116] further than that the penalties for slaying were within the jurisdiction of the Druids.

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

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

Now if a connection may be traced between the liability of the whole kindred for wergeld and the occupation of land by kindreds, with lesser divisions into something like gwelys, then, without pressing the point too far, without suggesting that the Welsh or the Irish form of tribal occupation of land may have been exactly that which in Cæsar’s time prevailed in Gaul, we may at least say that the analogy of the Welsh and Irish examples would lead us, from a tribal point of view, to judge that the form of land occupation in Gaul was not likely to be either absolute individual or absolute communal ownership. And as under Welsh and Irish tribal custom and forms of land occupation there was plenty of room for public and private controversies both de hereditate and de finibus, it may fairly[117] be suggested that some form of tribal land occupation would at least be more consistent with what Cæsar recorded in the few sentences under review than either complete individual or complete communal ownership would be.

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

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

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

[118]

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

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

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

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

And when we try to realise the position and work of the early Gallic or Breton or Cornish or Welsh or Irish churches from the fifth century onwards, we seem to see how their position and work were made possible only by the fact that what[120] was technically called the conversion of a people to Christianity was not after all so great a revolution as one might at first sight have thought.

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

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

[121]

CHAPTER V.
THE WERGELDS OF THE BURGUNDIAN AND WISIGOTHIC LAWS.

I. THE BURGUNDIAN WERGELDS.

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

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

The Burgundian laws, so far as they belong to those first issued by Gundebald himself, fall between[122] A.D. 501 and 516, and his reference to his ancestors in his preface shows that, while he may have remodelled the laws to meet altered circumstances, they were in part based upon traditional customs of his people.[94]

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

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

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

Thus two sets of laws became necessary, one for the Burgundian immigrants, the other for the old[123] inhabitants who were to continue under Roman law.

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

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

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

Now if from these clauses of the Lex Romana which relate to the Roman population, we turn to the Tit. II. of the Burgundian law proper of Gundebald ‘De homicidiis,’ we may gather what the old[124] customary wergelds may have been, but at the same time recognise how strongly Roman law and ecclesiastical influence had led Gundebald to break through what to the Romanised conscience seemed to be the worst features of the system of tribal wergelds.

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

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

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

Clause 3 enacts that if a slave, unknown to his master, shall slay a freeman, the slave shall be delivered up to death and the master free from liability. Clause 4 adds that if the master was privy to the crime of his slave both should be delivered to death. Clause 5 enacts that if the slave after the deed shall have disappeared, his master shall pay 30 solidi—the price of the slave—to the parentes of the slain. And lastly, in clause 6, the parentes of the slain are in all these cases warned that no one is to be answerable for the crime but the homicide himself, ‘because as[125] we enact that the guilty shall be extirpated, so we cannot allow the innocent to suffer wrong.’

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

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

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

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

[126]

II. THE WERGELDS OF THE LEX WISIGOTHORUM.

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

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

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

In a clause[96] added between 653 and 672 it was enacted that upon the kidnapping of the child—son or daughter—of a free man or woman, the criminal was to be delivered over into the power of the child’s father, or mother, brother or nearest parentes, so that they may have power to kill him or sell him.[127] And if they desired it, they might demand the composition for homicide from the criminal, i.e. 500 solidi (some MSS. 300 solidi), the crime being to the parents no less grave than homicide. If the child could be recovered, half the composition for homicide was to be paid, and if the criminal could not pay he was to become their slave.

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

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

It is impossible to look upon this scale as fully representing ancient Gothic tribal tradition. And when we turn to the title ‘De cæde et morte hominum,’[128] which seems to belong to the same date, it becomes obvious how far the spirit of these laws had wandered away from any tribal standpoint and from all recognition of the solidarity of the kindred. A homicide committed unknowingly (‘nesciens’) is declared to be in the sight of God no cause of death. ‘Let the man who has committed it depart secure.’[97]

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

Chindasvinthe, who reigned from 642 to 653, had legislated in the same direction. The question had arisen, what was to be done with homicides who took refuge in a church and committed themselves to the protection of God? Seeing that every one ought to be punished for his crime, he issued an edict to settle this question once for all. He enacted that whatever slayer or evil-doer the law required to be punished, no power whatever should be able to shield from punishment. And although the criminal might flee to the sacred altar, and in that case no prosecutor could drag him away without the concurrence of the priest, yet the priest, having[129] been consulted, the sacrament having been given, was to repel the criminal from the altar, and expel him from the choir, so that his prosecutor might apprehend him. The criminal thus expelled was to be freed from any further death penalty, but short of this was to be in the power of the parentes of the slain, who might do what they liked with him, i.e. he became their slave unless presumably the composition required was paid.

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

If the murderer had fled to the altar of a church he was to be delivered up to the parentes or propinqui of the slain kinsman, to be dealt with as they chose, short of death, and if there were no such parentes his property was to go to the fisc. The[130] murderer whose life was thus spared was not to have the use of the property.

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

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

[131]

CHAPTER VI.
TRIBAL CUSTOMS OF THE FRANKS AND OF THE TRIBES CONQUERED BY THE MEROVINGIAN KINGS.

I. THE WERGELDS OF THE LEX SALICA.

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

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

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

[132]

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

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

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

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

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

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

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

[134]

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

The system of wergelds was extended to the advantage of ultimately both official and clerical hierarchies, and even from the Franks themselves to strangers and to the Gallo-Roman population amongst whom they dwelt. And the whole character and system of the ‘Lex Salica’ was so much like a statement of crimes and the composition to be paid for them that it lent itself very easily to the interest of the fisc.

In the sixty-five titles themselves there is direct evidence that tribal tradition and the solidarity of the kindred had once existed, and that in spite of the edict the fisc was interested in their maintenance. Thus by Tit. LX., De eum qui se de parentilla tollere vult, a door was thrown wide open for the Salic tribesman to escape from the obligations of kindred. To secure this object he is to go to the mallus with three branches of alder, and break them over his head, and throw them on four sides in the mallus, and declare that he withdraws from the oath, and the inheritance, and everything belonging to the parentilla, so that thereafter, if any of his parentes either is killed or shall die, no part either of the inheritance or of the composition shall pertain to him, but all go to the fisc. If we take this clause strictly it implies and sanctions the general right of a kinsman of a slain person to share in his wergeld. The share of the kinsman, who under this clause frees himself from the liability to pay, and gives up his right to receive any[135] portion of the wergeld of a relative, does not lapse altogether, but is apparently kept alive for the fisc.

This clause is not perhaps inconsistent with the edict which left the receipt of wergeld still possible, though payment by the slayer’s kindred was optional. And so long as the occasional receipt of wergeld was still possible, rules for its division might reasonably remain in the Lex.

The same may perhaps be said of other clauses included in the original sixty-five. Tit. LXII., De compositione homicidii, is the one which deals with the division of the wergeld by its recipients, i.e. the kindred of the person slain. According to the text of Hessels, Cod. I., it is as follows:—

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

Amongst some clauses said to be added to the Lex Salica by Childebert I. (A.D. 515 to 551) is a very[136] important one, Tit. CI., De hominem ingenuo occiso, which seems to show that, at that date, composition was still encouraged by the law, but that some alteration was necessary in the division of the wergeld amongst the kindred of the slain.[100]

There must have been some special object in this addition to the Lex. Brunner, following the[137] very plausible suggestion of Wilda and Boretius, points out that the ‘mother,’ who, if alive, is to share in the second half of the wergeld, may be the mother of the son who takes the first half, i.e. the widow of the person slain, otherwise why should the mother alone be mentioned, and not the father of the slain?[102] If this view may be accepted the object of the clause becomes at once apparent.

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

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

If this view may be accepted, and if (as we had to do in interpreting the Brehon rules regarding divisions of the kindred) we may take the word ‘son’ as meaning all the sons, and insert the word parentillæ in explanation of the three proximiores, so as to understand[138] them (as in the Brehon Geilfine division) to be not three persons but three groups of kindred, then these clauses become fairly intelligible and consistent with Tit. LXII.[103]

The wergeld is divided into two halves and the second half (subject to the newly inserted right of the widow or mother of the slain) goes to the three groups of proximiores. What these three groups or parentillæ may be is not very clear.

The father has been killed and his sons take the first half of the wergeld. The other half is taken by the three nearer parentillæ. The nearest group at first sight would be the descendants of the two parents of the slain. The second group would be the descendants of the four grandparents of the slain. The third group should include the descendants of the eight great-grandparents of the person slain.

But Brunner has pointed out that the division into paternal and maternal lines of relationship begins with the slain person’s grandparents; so that the three proximiores on both sides should go back to the descendants of great-great-grandparents. He also points out that, as at each step the nearer group are to take two thirds and those behind it one third, the division between the three groups would be in the proportions of 6:2:1. And he quotes a statement regarding the division of wergelds in Flanders in the year 1300, in which the proportions of the payments of the three groups of relatives were still as 6:2:1. The half falling to the three[139] groups being reckoned as 18/36, the division was as under:—

We may then safely, I think, follow Brunner’s cautiously expressed conclusion that it is very probable that also in the Lex Salica under the words ‘tres proximiores’ are intended relations belonging to three separate parentillæ.[104]

So far we have dealt only with the receivers of the wergeld. We have now to consider the wergeld from the payers’ point of view. When at last we turn to the title ‘De chrenecruda,’ which deals with the payment of the wergeld by the slayer and his kindred, we seem all at once to breathe in the atmosphere of ancient tribal custom before it had been materially tainted by the new influences, which the conquest of a Romanised country and migration into the midst of a mixed population necessarily brought with them. The force of tribal instinct survives in this clause even though since the edict of Childebert II. it may have been allowed to remain in the Lex partly on sufferance, and even though some of its details[140] have been made incoherent by the mutilation it may have undergone. It was probably left in its place in the Lex, together with the clauses regarding the receipt of wergeld, because, even though the assistance of the kindred in the payment of wergeld had been made optional and discouraged, the instincts of kindred were not to be extinguished all at once. To save the life of a kinsman, kinsmen will sometimes exercise the option. And the slayer, before he flees for his life, will make his appeal to his kinsmen. The old traditional rules for payment will have force in the feelings of those who, under all the discouragements of the law, still choose to assist the slayer. Moreover, the Mallus, it appears, still exercised jurisdiction over the option.

This celebrated clause may perhaps therefore be quoted as evidence for so much of ancient tribal custom as to wergelds as the royal edict was unable to extinguish all at once.

Difficulty arises chiefly from the imperfect condition of the text of one of the clauses. But, keeping close to Codex I. of Hessels and Kern’s edition, the following translation may pass for our purpose (Tit. LVIII.):

[142]

Now, if we are here dealing with actual tribal custom, it is natural to place some weight upon the picturesque incidents which testify to its traditional origin. These picturesque incidents can hardly be other than proofs of antiquity.

Let us try, then, in spite of some confusion in the text, to make out the probable meaning of the action described. Clause 1 makes it clear that the first public step taken on the part of the slayer was to go to the Mallus with twelve co-swearers, who with him pledge their faith that he has given up everything, above ground or below it, towards the wergeld. There must have been previous negotiations with the kinsmen of the slain, and a stay of vengeance must have been conceded on the understanding that if possible the wergeld will be paid. Having thus obtained legal security for a time, the next stage in the proceeding is one between the slayer and his kinsmen, without whose help he cannot pay the wergeld.

The graphic details of the second clause seem to involve the presence of a family gathering met within the enclosure containing the house of the slayer, and, for anything we know, other houses of near relations. In this enclosure the kindred have met to deal with a family catastrophe in which they themselves are involved as well as the slayer. Even if they have to find only their half of the wergeld, fifty head of cattle from the family herd or their separate herds, as the case may be, must be to them a matter of importance. Standing on the threshold of the house from the four corners of which the slayer has gathered a handful of earth, he throws it over the representatives of his[143] paternal and maternal kindred. He has done his part, and now the responsibility rests on them.

The vagueness and difficulty of the next clause result from a text which has probably been tampered with. But with the help of Tit. LXII. and the addition of Tit. CI., giving further details, it becomes at least partly intelligible. The rule that the payment of wergeld was made by the relatives in the same proportions as they would receive it, if one of their kinsmen had been slain, is so general that we may fairly assume that it was followed also by the Salic Franks. We have seen that according to these clauses, if a father was killed, the sons took the first half of the wergeld, and that the other half was divided between three sets of proximiores—the three parentillæ or sets of relatives of both paternal and maternal kindreds—in certain proportions. The slayer and his sons should pay the first half, and his father and brothers apparently help them to pay it. The other part ought to fall upon the three parentillæ nearest of kin on both the paternal and maternal side.

So that Clause 3 becomes partly intelligible. ‘If the father and brothers have already paid’ what the slayer could not pay of the first half, the earth has to be thrown upon the three parentillæ nearest of kin of the mother’s kindred and the three parentillæ nearest of kin of the father’s kindred. These seem to be the ‘proximiores’ who should pay the other half.

The phraseology of the titles LXII. and CI. and the analogy of other tribal custom seem to warrant the conclusion that here also the three proximiores on the paternal and the maternal side were originally not[144] three persons next of kin, but the three parentillæ, i.e., according to Brunner, the descendants of the grandparents, the great-grandparents, and the great-great-grandparents of the slayer on both the paternal and maternal sides.

The next clause is the one which bears clearest marks of having been tampered with. It makes no sense when strictly construed, but it seems to contain two ideas: first that there may be a deficiency as regards the second half of the payment, and secondly that the persons who ought to make it up are ‘those others who come of the paternal kindred.’

The question who are intended by these words is one not easily answered decisively. Nor is it one upon which we need to dwell. It is to be regretted, however, that at this critical point the text is so sadly confused. For it must be borne in mind that if no relative was liable beyond those included in the phrase ‘the three proximiores’ then the liability to pay and receive wergeld under Salic custom was restricted to the descendants of the paternal and maternal great-great-grandparents. And whether it was so in ancient custom is just what we should like to know.

Be this as it may, the slayer has done what he could in throwing the responsibility upon his kindred. He knows not, perhaps, whether they will fulfil the obligation thus cast upon them. He has given up everything he himself possessed, and now, in his shirt, ungirded, and unshod, he leaps over the fence of the enclosure with a stake (‘palus’) in hand, to wander about in suspense until it transpires whether the rest of the wergeld will be found or not: whether those[145] who ought to assist him, whoever they may be, will help him in his need.

Clause 5 seems to state merely that the liability of the ‘proximiores’ is collective and not individual, so that the poorer in each group of relatives are to be assisted by the richer, and we need not dwell upon it.

Lastly, Clause 6 brings the slayer, after all his efforts and appeals to his kindred, face to face with the final result. Four successive times his co-swearers have brought him up to the mallus to hold him to his faith, and now at last, if no one steps in to complete payment of the wergeld, he must pay with his life.

This is the best we can make of the famous title in the Lex Salica regarding the payment of wergeld. But perhaps it is enough when taken together with the clauses relating to its receipt to reveal the main points of early Salic tribal custom. We may state them thus:—(1) That the wergeld was divided into two halves, for one of which the slayer, helped by his father and brothers, was responsible, and for the other of which the three grades of kindred, extending apparently to the descendants of great-great-grandparents, were responsible. (2) That if the addition of Tit. CI. in this respect represented ancient tribal custom, the payments, like the receipts, of the second half, were so distributed that the nearer parentilla or group of relatives paid and received, in relation to those behind them in kinship, in the proportion of two thirds and one third. (3) That, if we may take the addition of Tit. CI. as giving a share to the widow, and as an innovation, then it may fairly be concluded that, under ancient Salic custom as under Cymric custom,[146] the widow originally took no share in the wergeld of her husband, not being a blood relation to him.

Further, as in the title De chrenecruda there is no mention of any share in the payment of wergeld falling upon the wife of the murderer or her family, we may conclude that however closely two families might be united by a marriage, the wife, for the purpose of wergeld, still belonged to her own kindred, and that marriage did not involve the two families in mutual obligations for each other’s crimes of homicide, until both paternal and maternal kindreds became sharers in payment and receipt of wergelds in the case of the children of the marriage.

It is not needful to follow the speculations of various authorities as to what became of the homestead and landed rights abandoned by the slayer when he threw the chrenecruda upon his kindred and leaped, ungirt and unshod, over the fence of the inclosure. It is begging the question to call it his Grundstück in the sense of a plot of land individually owned. Whether it was so, or whether under Salic custom land was held by family groups, as in the case of the Cymric gwely, is what the clause De chrenecruda does not tell us. The question may perhaps have easily solved itself. The homestead and grazing rights, under tribal custom, might probably simply merge and sink into the common rights of the kindred, i.e. the neighbouring kinsmen would get the benefit of them. Even if the slayer, now himself slain or an exile, had held a privileged or official position as chief of his family, it would not follow that his successor (having doubtless already a homestead of his own) would care to succeed to the one left vacant. It is much more[147] likely that tribal superstition would leave the murderer’s homestead to decay. Even the sons of a person, whose kindred had left him to perish by refusing the necessary help in the payment of the wergeld of his victim, might well refuse to ‘uncover’ the haunted hearth of their father, whilst if the wergeld were paid the slayer would return to his old homestead. Finally it must be remembered that in the tribal stage of land occupation the value of land itself bore a very small proportion to the value of the cattle upon it. And so the ‘Grundstück’ of the slayer would be as nothing compared with the value of the hundred cows of a normal wergeld.

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

Turning now to the amount of the wergeld, something may be learned of the division of classes under the Lex Salica.

Tit. XLI. fixes the amount of the wergeld of the typical freeman who is described as ‘the Frank or the barbarian man who lives under the Lex Salica.’

The amount, as throughout the Lex are all the payments, is stated in so many denarii and so many solidi—8,000 denarii, i.e. 200 solidi. And that the Frank or barbarian living under the Lex Salica was the typical freeman is shown by the title De debilitatibus,[106] which fixes the payment for the destruction of an eye, hand, or foot at 100 solidi. Half the wergeld is the highest payment for eye, hand, and foot ever exacted by the Continental laws, and 100 solidi[148] certainly cannot apply to any grade of persons with a lower wergeld than 200 solidi.

Tit. XLI. is as follows:—

As this clause probably dates before the issue of Merovingian solidi of diminished weight, the 200 solidi of the wergeld may be taken to have been at the date of the law 200 gold solidi of Imperial standard.

So that the wergeld of the Frank or the free ‘barbarus living under the Lex Salica’ originally, when paid in gold solidi, was neither more nor less than the normal wergeld of a heavy gold mina.

We learn from clause 2 of the same title that if the homicide was aggravated by concealment of the corpse the composition was increased to 24,000 denarii or 600 solidi, and that the wergeld of a person ‘in truste dominica’ was again 600 solidi. The Royal Official thus, as in several other laws, had a triple wergeld.

Then lastly under the same title are three clauses describing the wergelds of the ‘Romanus homo conviva Regis,’ as 300 solidi, of the ‘Romanus homo possessor’ as 100 solidi, and of the ‘Romanus tributarius’ in some texts 45, and in others 63, 70, and 120 solidi. In Codex 10 the ‘Romanus possessor’ is described as the man who in the pagus in which he lives res proprias possidet.

The natural inference from these lesser wergelds[149] is that the Gallo-Romans were not ‘living under the Lex Salica,’ but under their own Gallo-Roman law, with wergelds one half the amount of those of the Frankish freemen.

Another of the 65 titles, viz. LIV., gives a further set of wergelds. The wergeld of a grafio is to be 600 solidi, that of a sacebaro or ob-grafio who is a puer regis 300 solidi, and that of a sacebaro who is an ingenuus 600 solidi. The sacebaro was apparently the lowest in rank of judicial officials except the rachinburgus, and the clause adds that there ought not to be more than three sacebarones in each malberg.

We may conclude from these statements that, the wergeld of the freeman living under the Lex Salica being 200 gold solidi, the higher wergelds up to 600 solidi were the threefold wergelds of public officials, i.e. threefold of the wergeld of the class to which they belonged. The wergeld of the sacebaro who was a puer regis was three times that of the Romanus possessor. The sacebaro who was an ingenuus had a wergeld three times that of the ingenuus living under Salic law.

We are thus brought into contact with an interesting question. These laws, made after conquest and settlement on once Roman ground, ought to be good evidence upon the tribal method of dealing with strangers in blood: i.e., in this case, the Gallo-Roman conquered population. And these clauses seem to show that half wergelds only were awarded to them under Salic law.

M. Fustel de Coulanges held indeed the opinion that the term ‘Romanus’ of the laws was confined to[150] the freedman who had been emancipated by process of Roman law.[107] But here the contrast seems to me to be between Franks and barbarians ‘who live under Salic law’ on the one hand, and the Gallo-Romans, whether freedmen or Roman possessores, living under Roman law on the other hand. We shall come upon this question again when the Ripuarian laws are examined, and need not dwell upon it here.

It is interesting, however, to notice that in Codex 2, Tit. XLI. the Malberg gloss on the clause regarding the wergeld of the ‘Romanus tributarius’ is ‘uuala leodi,’ which Kern (208) explains to mean the wergeld of a Wala—the well-known name given by Teutonic people to their Gallo-Roman and Romanised neighbours.

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

The question of the payment of wergeld is now generally admitted to be distinct from that of inheritance in land.

The persons who receive and pay their share of the wergeld are those who would have taken part directly or indirectly in the feud. They are not confined to the expectant heirs of the slayer or the slain.[108]

If we are to learn anything directly upon the question of the method of landholding under Salic custom it must be, not from the clauses relating to the wergelds, but mainly from the Title LIX. De Alodis. It is the next title to the De[151] chrenecruda and can hardly be passed by without some attempt to recognise the bearing of its clauses upon the present inquiry.

Its text is very variously rendered in the several manuscripts, and it has been the subject of many interpretations. But if it may be legitimate to approach it from a strictly tribal point of view, it will not be difficult, I think, to suggest an interpretation consistent with what we have learned of tribal custom from the Cymric example, and therefore worthy at least of careful consideration.

According to Codex 1 of Hessels and Kern the clauses are as follows:—

The last clause in Codex 10 (Herold’s) is amplified as follows:

[152]

Now, in the first place, what is meant by the term alod? In the Lex Salica it occurs again in Tit. XCIX. De rebus in alode patris, which relates to a dispute about the right to a certain thing, as to which the decision turns upon the proof that can be given by the defendant that he acquired the thing in alode patris. He has to bring three witnesses to prove ‘quod in alode patris hoc invenisset,’ and three more witnesses to prove ‘qualiter pater suus res ipsas invenisset,’ and if after failure of proof and the interdiction of the law the thing be found in his possession he is to be fined XXXV. solidi.

From this clause the inference must apparently be that the ‘alod of the father’ was the whole bundle of rights and possessions, personal as well as real, which passed to descendants by inheritance. Indeed, it seems to be generally admitted that in the title ‘de alodis’ all the clauses except the last apply to personal property, and only the last to realty.[109]

There are titles ‘de alodibus’ both in the Ripuarian Law[110] and in that of the ‘Anglii and Werini.’[111] In both laws the ‘alod’ includes personalty, and the latter defines the personalty as ‘pecunia et mancipia,’ thus reminding us that the personalty of the[153] alod mainly consisted of cattle and slaves. In the title ‘de alodibus’ of the Ripuarian Law, the hereditary or ancestral character of the alod is emphasised by the application to it of the words ‘hereditas aviatica’ There may, however, be some doubt whether the term hereditas aviatica included the whole alod or only the land of the alod.

Regarding, therefore, the ‘alod’ as in some sense a bundle of rights and property, let us try to consider these clauses with a fresh mind in the light of what we have learned of Cymric tribal custom.

Under this custom, speaking broadly, as we have seen, daughters did not share in the landed rights of the gwely. They received instead of landed rights in the gwely their gwaddol or portion, mostly, no doubt, in cattle, and they were supposed with it to marry into another gwely, in whose landed rights their sons were expected to share by paternity. If women inherited landed rights at all, it was exceptionally in the case of failure of male heirs, and then only so that their sons might inherit. The heiress in such a case, under Cymric as well as Greek tribal law, was in quite an exceptional position, and, as we have seen in Beowulf, the sister’s son might be called back into the mother’s family to prevent its failure for want of heirs.[112] The exclusion of female successors from terra Salica is therefore quite in accordance with tribal custom.

That the clauses as to personalty in the ‘de alodis ’ were modifications of ancient Salic custom, made[154] in favour of females, is rendered almost certain by the position of the last clause as a saving clause, apparently inserted with the object of protecting the rights of the sons in the land of the alod, by preventing the application to it of the previous clauses.

Codex 1 does not describe the land as terra Salica. It is content to protect land without qualification from the application of the previous clauses, which, if applied to land, would transgress against tribal custom. And the same may be said of Codices 3 and 4. But in the Codices 5 to 10 and in the ‘Lex emendata’ the words ‘terra Salica’ are used.

This is a point of importance, because it goes far to show that the whole of the land of the alod was terra Salica, and protected by the saving clause from participation by females. The use of the word land alone in Codex 1 forbids our thinking that part of the land of the alod was terra Salica and the rest not terra Salica.[113] And this consideration seems to show that to import into the clause any explanation of the term derived from the word Sala, so as to confine its meaning to the ‘Haus und Hofland’ or the ‘Väterliches Wohnhaus,’ as Amira[114] and Lamprecht[115] would do, would be misleading. The homestead of the chief of a tribal family holding, on terra Salica, may, like the Roman villa, have passed by[155] various and even natural stages into the ‘Herrengut,’ or ‘terra indominicata’ of later manorial phraseology, and the term terra Salica may have clung, as it were, to it. But to reason backwards to the Lex Salica from the instances of its later use, given by Guérard in his sections on the subject, seems in this case, if I may venture to say so, to be a reversal of the right order of inference. Lamprecht carefully guards himself against the view that the terra Salica of the Lex was as yet a ‘Herrengut,’ and Guérard, in his careful sections on the subject, admits three stages in the evolution of the terra Salica: (1) ‘l’enceinte dépendant de la maison du Germain;’ (2) ‘la terre du manse seigneurial;’ (3) ‘simplement la terre possédée en propre, quelquefois donnée en tenure.’[116]

This may in some sense fairly represent the line of evolution subsequently followed, and I have long ago recognised the embryo manor in the ‘Germania’ of Tacitus; but, for our present purpose, this does not seem to help to an understanding of the term as used in the Lex Salica.

When all the Codices are taken together into account, terra Salica seems to include the whole of the land, or landed rights, of the alod. From the whole, and not only the chief homestead, the succession of females is excluded, and it is the whole, and not the chief homestead only, which is to be divided between the nepotes and pronepotes of the deceased tribesman.

Approaching the Lex Salica, as we are doing, from a tribal point of view, we seem to get upon quite other and simpler ground.

[156]

The emphasis laid in the Lex Salica upon the distinction in social status between persons ‘living under the Lex Salica’ and those living under Roman law suggests that land held under the Lex Salica was not held under the same rules as those under which the ‘Romanus possessor’ held his ‘res propria.’ It would seem natural, then, that terra Salica should be land held under Salic custom as opposed to land held under Roman law. And if this be the simple rendering of the term terra Salica in the Lex, then returning to the likeness of the Salic ‘alod’ to the Cymric family holding some likeness might be expected in the rules of succession to the land of the alod when compared with the Cymric rules of succession to the ‘tir gweliauc’ or family land of the gwely.

We have seen that in the gwely the descendants of a common great-grandfather were kept together as a family group till, after internal divisions between brothers and then between cousins, there was at last equal division of landed rights between second cousins, i.e. great-grandsons of the original head of the gwely. The fact of this right of redivision at last between great-grandchildren was apparently what held the family group together till the third generation.

The last clause of the ‘de alodis,’ even as it stands in Codex 1, coincides with Cymric custom in so far as it excludes females from landed rights and confines inheritance in the land of the alod in the first instance to sons ‘… qui fratres fuerint.’

And when at last later Codices call the land of the alod terra Salica, and the addition in Codex 10 is taken into account, the evidence becomes very strong[157] indeed that under Salic custom the land of the alod or terra Salica was held as a family holding, and, like the land of the gwely, divisible, first between sons, then between grandsons, and at last between great-grandsons.

The later the date at which this sentence was added to the final clause of the ‘de alodis,’ the stronger becomes the evidence of what ancient Salic custom on this matter was.

Assuredly the object of these words is not to introduce a new principle. They obviously describe ancient Salic custom in order to protect it. And how could a division per capita amongst great-grandsons take place unless, as in the Cymric gwely, the holding of terra Salica had during the whole period of the three generations been kept in some sense together as a family holding?

It would be unwise to press analogies between Cymric and Salic tribal custom too far, but I have before pointed out that a system of wergelds, to which paternal and maternal relatives each individually contributed their share, seems to imply an original solidarity of kindred, which must, wherever it was fully in force, have been connected with a corresponding solidarity in the occupation of land, together with its complement, an individual ownership of cattle. And in the light of the ‘de alodis’ it does not seem unlikely that it may have been so under ancient Salic custom.

[158]

If the foregoing considerations be accepted, may we not recognise in the term terra Salica, as at first used, a meaning analogous to that which Professor Vinogradoff has recently so brilliantly given to the Anglo-Saxon term ‘folc-land’?[117] In both cases surely it was natural that there should be a term distinguishing land still held under the rules of ancient tribal custom from land held under the Romanised rules of individual landownership.

It is not necessary to do more than allude here to the various clauses of the Lex Salica from which the existence of individual holdings is clearly to be inferred. If, from this single mention of terra Salica and its ultimate division among great-grandsons per capita, the continued existence of tribal or family holdings held still under Salic law may be legitimately inferred, it is at least equally clear that the Romanus possessor who lived and held his possession as res propria under Roman law also existed. And if so the two classes of holders of land must often have been neighbours. The vicini, ‘qui in villa consistunt,’ of the title ‘de migrantibus’ (XLV.) may some of them have been of the one class and some of them of the other. The objection of a single person living under Salic law to the interloper would have a new meaning and become very natural if the conflict between the two systems were involved. And when we have reminded ourselves of these facts the title De eum qui se de parentilla tollere vult, to which allusion has already been made, which enabled the tribesman, by the somewhat theatrical action of[159] breaking the four sticks of alder over his head, to cut himself loose from his parentilla, takes its proper place as evidence of the temptation which must have beset the young tribesman in close contact with Gallo-Roman neighbours to free himself from what had come to be regarded as a bondage, and to take an independent position as an individual under the new order of things which was fast undermining the old.

Besides the title ‘de alodis’ there is another source of information which must not be overlooked—viz. the Edict of Chilperic (A.D. 561-584).[118]

This edict appears to have been issued soon after the extension of the Frankish boundary from the Loire to the Garonne, and specially to apply to the newly conquered district.

This conquest would necessarily extend the area within which Salic settlements would be made among non-Salic neighbours, and multiply the cases in which even a Salic Frank might find himself less securely surrounded by kinsmen than of old. Under these altered circumstances instances would become more and more frequent of the close neighbourhood of tribesmen still holding under Salic custom and strangers living under Roman laws of succession. The clauses of the edict seem accordingly to be directly intended to prevent lapsed interests of Salic tribesmen in land from falling to the vicini when there were brothers or female relations surviving. In old times in purely Salic settlements lapsed[160] interests must usually have become merged in the general rights of the kindred, the vicini being kinsmen. And no harm might come of it. Landed rights would seldom have passed away from the kindred. But as the stranger element increased in prominence the kindreds would more and more suffer loss. Hence probably the extended rights given by the edict to female relatives. It allows them to succeed in certain cases so as to prevent the land, or, as we should rather say, the landed rights, from lapsing to the vicini.

Clause 3 is as follows:—

So far evidently no change is made; old custom still holds good. But in the rest of the clauses a modification is made evidently to meet altered circumstances, and specially to shut out the vicini.

[161]

The remainder of the clause is very difficult to construe in the imperfect state of the text, and it is not necessary to dwell upon it. It seems to apply to newcomers (‘qui adveniunt’) and their rights inter se.[119]

We have then in these clauses an allusion to ancient tribal custom as well as to the change made necessary by the new circumstances.

The implication is that under the rule of ancient custom, on a brother’s death without children, his brothers did not succeed to his land, but the vicini. Now the brother is to succeed, not the vicini.

At first sight this seems unnatural and unlikely. But it ceases to be so if we may regard the alod of terra Salica as a family holding under conditions somewhat like those of the gwely. For under Cymric custom the brother did not succeed to the childless brother as his heir. The co-inheritors, as far as second cousins, were his heirs. In other words the lapsed share went to his vicini, but they were the kinsmen of his own gwely.[120]

Nor did a brother succeed to his brother’s da, and the grazing rights and homestead connected with it. He had received this da, as we have seen, from his chief of kindred by ‘kin and descent,’ i.e. by tribal right in his kindred, and therefore if he should die without children his da and everything he had by kin and descent went, not to his brothers, but back to the kindred or the chief of kindred from whom he received it.

[162]

The lapse of landed rights in family holdings to the kindred was one thing. Their passing out of the kindred to vicini who were strangers would be quite another thing.

When after a time, let us say under cover of the title ‘de migrantibus’ or upon extended conquests, others, perhaps ‘Romani possessores,’ had taken places in the villa side by side with the tribesmen living under the customary rules of terra Salica, or when Salic Franks had settled among strangers, the new element would have to be reckoned with.

In the clause ‘de migrantibus’ the protection of ancient Salic custom was sought by the exclusion of strangers at the instance of a single objector from terra Salica. In the Edict of Chilperic, on the other hand, the presence of stranger vicini was taken for granted, and the protection of terra Salica sought by extending the right of succession to brothers and females, so that at least fewer cases might arise of lapsed inheritances falling away from the kindred into the hands of the vicini who might be strangers.

The breaking up of tribal custom thus was not all at once, but by steps. At first terra Salica was limited to men, then female succession was allowed,[163] and lastly, in default of kindred, stranger vicini under certain conditions were admitted to the lapsed inheritance.

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

The customs of the Ripuarian Franks as to wergelds, as might be expected, do not seem to have varied much from those of the Salic Franks. They were probably neighbours in close contact with each other, and, judging from the laws, the population of the district was a mixed one.

The wergeld of the Ripuarian ingenuus, like that of the Salic Frank or barbarian living under the Lex Salica, was 200 gold solidi, and 12 co-swearers were required to deny the homicide (Tit. VII.).

Here again official position seems, as under the Salic law, to be protected by a triple wergeld. The grafio or comes, who was a fiscal judge, had a wergeld of 600 solidi (Tit. LIII.). The payment for one in truste regis was also 600 solidi (Tit. XI.).

On the other hand, the wergeld of a ‘homo regis’ (Tit. IX.), like that of the ‘puer regis’ of the Salic law, was only 100 solidi, and that of the ‘man’ of the Church the same (Tit. X.), i.e. half that of the Ripuarian ingenuus.

Consistently with this, the triple payment for killing a woman between childbearing and 40, as also in the Salic Law, was 600 solidi, whilst the wergeld of the ‘femina regia’ or ‘ecclesiastica’ was only 300 solidi.

There are apparently hardly any indications as to[164] how or to whom the wergelds were to be paid. There is only one reference to the parentes, and that is not connected with the wergelds. In Tit. LXXXV. it is stated that he who shall disinter a corpse and rob it shall pay 200 solidi and be ‘expelled till he shall satisfy the parentes.’

The murderer alone seems to be responsible, unless indeed the few words added to the clauses imposing the triple wergeld of 600 solidi upon the murderer of a woman may be taken to be of general application. The words are these:—

Has it really come to this, that since the Edict of Childeric II. came into force the parentes are released, and the descendants of the murderer, for three generations, are to be in slavery till the wergeld is paid? It may be so, for the penalty in default of payment of the wergeld probably included his own slavery, which involved with it that of his descendants.

The ancient tribal tradition that within the family there could be no feud or wergeld, but exile only, was still apparently in force. In Title LXIX. there is a clause which enacts that if any one shall slay one next in kin (‘proximus sanguinis’) he shall suffer exile and all his goods shall go to the fisc. This exile of the slayer of a near kinsman and forfeiture of his goods to the fisc seems to be almost the only distinct important survival of tribal feeling, apparently neither wergeld nor the death of the slayer being admitted. But in this case the fisc was, as usual, the gainer. Parricide under any system of criminal law[165] would be a capital crime. The pertinacity with which the custom that, being a crime within the kindred, there could be no feud and therefore no wergeld, was adhered to in the midst of manifold changes in circumstances, feeling, and law, is very remarkable.

There is not much else in the Ripuarian laws throwing light upon tribal customs as regards the solidarity of the kindred. But there is a good deal of interesting information upon the important subject of the treatment of strangers in blood.

We have seen that in the Lex Salica the definition of the ingenuus with a wergeld of 200 solidi was the Francus or barbarus living under Salic law. The ‘barbarus’ who lived under Salic law was no longer a stranger; he had in fact become a Frank. As we should say, he had been naturalised. Hence there was no inconsistency in the apparent occasional indiscriminate use of the words ‘Francus’ and ‘ingenuus.’ They meant the same thing. But there is nothing to show that the ordinary Gallo-Roman was included under the term ‘barbarus who lived under Salic law.’ On the other hand, we find him living under the Roman law.

In considering the method of dealing with people of so mixed a population as that of the Ripuarian district it is very important to recognise how, under tribal custom, every man continued to live under the law under which he was born, until by some legal process his nationality, so to speak, was admitted to be changed. The Cymric example has shown us how strictly the tribal blood and admission from outside into the tribe were guarded. In such a mixed population[166] as that of the Ripuarian district, the strictness may have been somewhat relaxed, and the formalities of admission less difficult. But there is evidence enough, I think (with great deference to M. Fustel de Coulanges’ doubts on the subject), to show that to some extent at any rate social distinctions were still founded upon ‘difference of blood.’ At all events it is worth while to examine the additional evidence afforded by some clauses in the Ripuarian laws.

In Tit. XXXI. it is stated that Franks, Burgundians, Alamanni, and others, of whatever nation, living in the Ripuarian country, are to be judged and dealt with, if guilty, according to the law of the place of their birth, and not by the Ripuarian law, and it is significantly added that (living away from their kinsmen as they often must be) if they cannot find compurgators they must clear themselves by the ordeal of ‘fire or lot.’[122]

Here we come upon one of the strongest tests of tribal custom in its insistence upon the necessity of a man being surrounded by a kindred before he can be a fully recognised tribesman. Unless he be surrounded by kinsmen who can swear for him, under tribal custom, he must have recourse to the ordeal in case of any criminal charge.

There is a clause, not inconsistent, I think, with Tit. XXXI., which seems to draw a clear distinction in[167] favour of tribes more or less nearly allied in blood with Franks, viz. the Burgundians, Alamanni, Bavarians, Saxons, and Frisians, resident in the Ripuarian district, as contrasted with the Romanus, who surely must be the Gallo-Roman.

In Title XXXVI. the following wergelds are stated, the slayer being a Ripuarian in all cases:—

Thus the Roman stranger is placed in the lowest grade. His wergeld is only 100 solidi—half that of the Ripuarian or Salic Frank—whilst those tribes nearer in blood to the Frank are classed together with a wergeld of 160 solidi, not much less than that of the Frank. Indeed, there is reason to believe that these were the wergelds of the several tribes in force in their own country according to their own laws.[123]

In this connection the view of M. Fustel de Coulanges, that the term ‘Romanus’ is confined to the libertus freed under Roman law, hardly seems natural. The evidence seems to show that the man freed under the formalities of Frankish law thenceforth lived under Salic law and became a Frankish freeman with a freeman’s wergeld of 200 solidi, whilst the man who[168] became a freedman under process of Roman law thenceforth lived under Roman law, and became a Roman freeman—a Romanus—with a wergeld of only 100 solidi. The inference that the difference in status was the result of difference in blood is not altered by the fact that the social status awarded to the Gallo-Roman was the same as that of the libertus in some other laws.

The fact relied upon by M. Fustel de Coulanges, that under the laws of the Burgundians and the Wisigoths the Gallo-Roman was placed in a position of equality with the Teutonic conquerors, need not, I think, affect the view to be taken of his position under the Salic and Ripuarian laws. Tribal custom had to meet in Burgundy and the Wisigothic district with Roman law and Roman institutions still comparatively in their full strength. Marriages with the Gallo-Roman population were encouraged, and the system of wergelds almost entirely superseded. The Frankish conquest was of another kind, and the Frank was hardly likely to care to meet the Gallo-Roman on equal terms.

Passing now from the position of the stranger who was recognised as a freeman, let us try to get a clear idea of the position of the freedman under the Ripuarian law, taking the cases of the Frankish freedman and the Roman libertus separately.

In Tit. VIII. the payment for slaying a servus is 36 solidi. In Tit. LXII., if any one makes his servus into a tributarius or a litus and he is killed, the penalty is the same—36 solidi, but if he chooses to make him into a denarialis (i.e. a freedman under Frankish law) then his value shall be 200 solidi.

[169]

The tributarius or litus has gained but one step up the ladder of Frankish freedom. But the denarialis, with nearly six times his wergeld, has as regards his wergeld reached the highest rung at a single leap.

Though, however, as regards wergeld he has done so, in another sense he has by no means done so. Under tribal custom he would not attain to full tribal rights till a kindred had grown up around him. So under Tit. LVII. the ‘homo denarialis,’ notwithstanding his wergeld of 200 solidi, is recognised as having no kindred.

And in full accord with this statement is the following clause in the ‘Capitulare legi Ripuariæ additum’ of A.D. 803.

So that more of tribal custom still prevails in his case than at first appears. Only in the third generation are full rights of inheritance secured to his successors.

If now we turn to the libertus under Roman law, Tit. LXI. states that if any one shall make his servus into a libertus and Roman citizen, if he shall commit a crime he shall be judged by Roman law, and if he be killed the payment shall be 100 solidi: but ‘if he shall die without children he shall have no heir but our fisc.’

Thus, as regards inheritance, the Frankish[170] denarialis and the Roman libertus seem to be treated alike, notwithstanding the difference of wergeld.

Turning to another matter, the Ripuarian laws, being of later date than the Lex Salica, made provision for the wergelds of the clergy.

Tit. XXXVI. provided that the clergy should be compounded for according to their birth, whether of the class of servi, or men of the king or of the Church, or liti, or ingenui. If ingenui, they were to be compounded for with 200 solidi. Then the wergelds of the higher clergy are stated as follows:—

And there is a long clause De Tabulariis (Tit. LVIII.) providing that servi may be made under process of Roman law tabularii of the Church, so that they and their descendants shall be and remain servants of the Church, and render the proper services of tabularii to the Church, without any one having power further to enfranchise them. In case of their death without children the Church is to be their heir. These appear to be the ‘men of the Church’ whose wergeld was 100 solidi.

The Tit. LVI. De alodibus is as follows:—

All that need be remarked regarding this title is, first its close resemblance to the clause ‘de alodis’ in the Lex Salica and the confirmation given by the phrase ‘hereditas aviatica’ to the family character of the ‘alod,’ and secondly that it seems to belong to the time when female succession was favoured.

Whether the ‘hereditas aviatica’ included the whole alod or only the land of the alod, on failure of male heirs, females were now to succeed.

There remains only to be noticed the interesting addition to Tit. XXXVI. which enacts that if any one ought to pay wergeld he should reckon, inter alia:—

And this is followed by a final clause which is found only in some of the manuscripts and which is probably an addition made under Charlemagne:—

Thus our consideration of these laws ends with the fact that, before the disturbance in the currency made by Charlemagne, the wergeld of the Frankish freeman of 200 gold solidi or heavy gold mina was still, in the Ripuarian district at all events, a normal wergeld of 100 oxen.

[172]

V. THE ALAMANNIC AND BAVARIAN LAWS.

These laws have an interest of their own, but only those points come directly within the range of this inquiry which are likely to throw light upon the interpretation of the Anglo-Saxon laws.

Beginning at once with the wergelds, there are two distinct statements.

According to the ‘Pactus,’ which is assigned to the sixth or seventh century, and which is considered to represent customs of the Alamanni before they were conquered by the Franks,[124] the wergelds were as follows:—

And for women:—

These wergelds correspond very closely in some points with those of the Burgundian laws and should be compared with them.[125]

The wergeld of women was double that of men of the same class. In the Lex Salica and Lex Ripuariorum, women were paid for threefold.

In the Lex Hlotharii, s. LXIX., the wergelds are stated as follows:—

It is not clear that there has been any change in the wergelds since the date of the ‘Pactus.’

The wergeld of the medius Alamannus, 200 solidi, is the same as before. That of the liber, 160 solidi, seems to be the same as that of the baro de mino flidis in the ‘Pactus.’ It is also the wergeld of the Alamannus according to the clause mentioning strangers in the Ripuarian law. The use of the term ‘medius Alamannus’ seems to imply that there should be a primus Alamannus as in the ‘Pactus.’ But what these two classes of Alamanni with higher wergelds than that of the liber were does not appear.

This later statement of the wergelds seems also to contain a provision which can, I think, only be explained by tribal custom. It occurs again in clause XLVI., which enacts that the same payment has to be paid to the parentes of a person sold out of the country beyond recall as if he had been killed. This rule is the same in the Salic and Ripuarian codes. But in this law a distinction is made between the case of a slain man leaving an heir, and the case of his leaving no heir.

The explanation must be that if the lost kinsman leaves no heir, the loss is all the greater to the kindred. This looks like a survival of tribal custom. The dread of a family dying out lay, as we have seen, at the root of the widespread custom which brought[174] in the sister’s son to fill the vacant place when there was no one else to keep up the family. This addition in the later statement, though omitted in the ‘Pactus,’ pointing back as it appears to earlier custom, seems to show that the Lex as well as the ‘Pactus’ may in the matter of wergeld be traced to Alamannic rather than Frankish sources.

In both the ‘Pactus’ and the Lex, as we have seen, the wergelds of women were double those of men. The Bavarian law gives the reason of the rule (IV. 29) and also the reason why sometimes an exception was made to the rule.

In titles XXIX. and XXX. of the Alamannic law it is enacted that if a man be slain in the curtis of the Dux a threefold wergeld must be paid, and that if the messenger of the Dux be killed within the province his triple wergeld must be paid.

In the Bavarian law the wergeld of the freeman is stated to be 160 solidi, thus:—

There are no wergelds mentioned in the Bavarian law corresponding to those of the medius Alamannus and the primus Alamannus of the Alamannic laws.

According to Tit. III. 1, there were certain families who were held in double honour, and had double wergelds. The Agilolvinga had fourfold wergelds, being the family from whom the Dux[175] was chosen. The Dux himself had a fourfold wergeld with one third added. If the life of any of his parentes were taken the wergeld was, according to one manuscript, 640, and according to another 600 solidi.

These wergelds of the Alamannic and Bavarian laws are not on all fours with those of the Salic and Ripuarian Laws. But in both cases the ordinary freeman’s wergeld is 160 solidi (unless there be no heir to inherit), so that in both cases the wergelds correspond sufficiently with the clause in the Ripuarian Laws which accords to them a wergeld of 160 solidi, after having before stated that strangers are to be judged according to the laws under which they were born.

In the Bavarian law there is special mention of the freedman and the servus, and it is worth while to dwell a moment on the position assigned to them as compared with the ordinary freeman.

There are three titles headed as under:—

These clauses relate to injuries as well as to homicide. As regards all minor injuries, the freedman is paid for at one half, and the servus at one third, of the payment to the liber for the same injury.

But when the payment comes to be for the eye, hand, or foot, the difference is, roughly speaking, doubled. The payment for the liber is 40 solidi, for the freedman 10 solidi, and for the servus 6 solidi (? 5 sol.). And these payments are seemingly intended to be one quarter of the respective wergelds for[176] homicide. We have seen that the wergeld of the freeman was 160 solidi. These clauses state that the freedman’s wergeld was 40 solidi, and that of the servus 20 solidi, and that in both these cases the lord took the payment.

In Tit. IV. 30, De peregrinis transeuntibus viam, the passing stranger’s death was to be paid for with 100 solidi to his parentes, or in their absence to the fisc.

The wergelds of the Bavarian laws may therefore be thus stated:—

And all these solidi were gold solidi of Imperial or Merovingian standard, it does not matter much which.

The crime of homicide within the near family was dealt with in the Alamannic law in conformity with ancient tribal custom. There was no wergeld in such a case.

Once more in these laws the parricide (the fisc having taken his property) goes free, but for the penance required by the Canons of the Church.

As regards the wergelds of the clergy in the[177] Alamannic law the Church seems to claim triple penalties. The wergelds of the clergy are as follows, according to the Lex Hlotharii (XI. to XVII.):—

According to the Bavarian law (Tit. I. c. x.) a bishop’s death was to be paid for by the weight in gold of a leaden tunic as long as himself, or its value in cattle, slaves, land, or villas, if the slayer should have them; and he and his wife and children are to be in servitio to the Church till the debt is paid.

The lower clergy and monks were to be paid for according to their birth double; parochial priests threefold. (I. c. viii. and ix.)

In the Liber secundus of the Alamannic law is an interesting clause which throws some light upon the position of married women.

This is natural, but it seems to show that if the child had been born dead and the wife had died without children her paternal inheritance would have gone back to her kindred and not to her husband.

In the absence of other evidence this is perhaps enough to show that in accordance with tribal custom[178] the kindred of the wife had not lost all hold upon their kinswoman, and therefore that she by her marriage had not passed altogether out of her own kindred.

Lastly, there are clauses in the same Liber secundus which declare the value of the solidus in equation with cattle.

These clauses show that the solidi in which the wergelds were paid were gold solidi of three tremisses.

In the Ripuarian laws the ox was equated with 2 gold solidi, i.e. 6 tremisses, so that we learned from the equation that the wergeld of the Ripuarian liber, 200 solidi, was really a wergeld of 100 oxen. But the above equations show that under Alamannic law the wergeld of the liber was not so.

In the Alamannic laws the best ox was valued only at five tremisses instead of six, so that the wergeld of 200 solidi of the medius Alamannus was really a wergeld of 120 oxen; and the 160 solidi of the wergeld of the baro de mino flidis of the ‘Pactus,’ or simple ‘liber’ of the Lex Hlotharii, was a wergeld of 96 oxen or 120 Alamannic ‘sweetest cows.’

Any one who has seen the magnificent fawn-coloured oxen by which waggons are still drawn in the streets of St. Gall will appreciate what the ‘summus bovus’ of the Alamannic region may have been. Why it should have been worth in gold less than the oxen of other lands does not appear.

[179]

CHAPTER VII.
TRIBAL CUSTOMS OF THE TRIBES CONQUERED BY CHARLEMAGNE.

I. THE EFFECT UPON WERGELDS OF THE NOVA MONETA.

We have reached a point in our inquiry at which it becomes necessary to trouble the reader with further details concerning the changes in the Frankish currency, made by Charlemagne.

We are about to examine the customs as regards wergelds of those tribes which owed their laws, in the shape in which we have them, to the conquests of Charlemagne. The alterations in the currency, made literally whilst the laws were in course of construction, naturally left marks of confusion in the texts relating to wergelds, and we have to thread our way through them as best we can.

The change which we have to try to understand was in the first place a change from a gold to a silver currency—i.e. from the gold currency of Merovingian solidi and tremisses to the silver currency of Charlemagne’s nova moneta.

There had been a certain amount of silver coinage in circulation before, but the mass of the coinage had been hitherto gold, mostly in gold tremisses.

In all the Frankish laws hitherto examined the monetary unit was the gold solidus with its third—the[180] tremissis. And the only question was whether the solidi and tremisses were of Imperial or of Merovingian standard—whether the solidus was the Merovingian solidus of 86·4 wheat-grains and the tremissis 28·8, or the Imperial solidus of 96 wheat-grains and the tremissis 32.

As regards the Lex Salica, originally the solidus was probably of the Imperial standard, because the Merovingian kings at first in their coinage copied the Imperial coins both in type and weight. And before they issued a coinage of their own they made use of Imperial coins, both gold and silver. Numismatists point in illustration of this to the fact that in the tomb of Childeric at Tournay were found no Frankish coins, but a large number of Roman coins, gold and silver, of dates from A.D. 408 to those of the contemporary Emperor Leo I. (457-474). And for proof that these Roman coins were afterwards imitated by Merovingian princes M. Maurice Prou had only to refer the student ‘to every page’ of his catalogue of ‘Les Monnaies Mérovingiennes.’[126]

Now, if the gold solidus was at first of 96 wheat-grains, then the denarius (one fortieth) would be 2·4 wheat-grains of gold, and at a ratio of 1:10 the denarius would be the scripulum of 24 wheat-grains of silver, which was called by early metrologists the ‘denarius Gallicus.’ Further, at 1:12 the denarius would become the Merovingian silver tremissis of 28·8. So that probably the denarius of the Lex Salica may originally have been the scripulum, and under later Merovingian kings their own silver tremissis. Thus[181] these silver tremisses had probably been regarded as the denarius of the Lex Salica for a century or two at least before Charlemagne’s changes.

Up to this time, therefore, there was apparently a distinct connection between the reckoning and figures of the Lex Salica and the actual Frankish coinage. The Merovingian coinage of gold and silver tremisses of 28·8 wheat-grains was therefore, from this point of view, so to speak, a tribal coinage for the Franks themselves, but not one adapted for currency, over a world-wide Empire such as Charlemagne had in view, and with which at last, when adopting the title of Emperor, he had practically to deal.

The changes he made in the currency were intimately connected, not only in time but in policy, with the extension of his kingdom and his ultimate assumption of the Imperial title.

His raising of the weight of the Frankish gold tremissis and silver denarius from the Merovingian standard of 28·8 to the Imperial standard of 32 wheat-grains was probably the result of his conquest of Italy. He seems to have arranged it with the Pope, for they issued silver denarii of the higher standard with the impress of both their names upon them.[127]

It was natural that he should wish his coinage to obtain currency throughout his dominions, and this could not be expected if it was continued at a lower standard than that of the Byzantine Emperor.

Not only in the currency, but also in other matters, extended empire involved the breaking down[182] of tribal peculiarities and greater uniformity in legal provisions and practice.

To mention one instance suggested by our previous inquiry, we have noticed how the extension of Frankish rule in Gaul from the Loire to the Garonne increased the difficulties of maintaining two laws as to land. Strangers under Roman law, as in the ‘de migrantibus,’ one by one were settling among Franks holding alods or family holdings of terra Salica. Extended conquests reversed the process, and in conquered provinces immigrants living under Salic law became strangers amongst vicini living under Roman, Burgundian, or Wisigothic law.

The family holdings of terra Salica must have now become the exception and not the rule. This becomes evident in the provisions made for the army.

In the Capitulare of A.D. 803,[128] de exercitu promovendo, it was ordered that every free man (‘liber homo’) who, de proprio suo or as a benefice, had four mansi vestiti, that is mansi occupied by tenants, should equip himself and attend ‘in hostem.’ And those not having so many mansi were to club together so that for every four mansi a soldier should be found. The possession of mansi had apparently become sufficiently general to be taken as the typical form of landholding.

In A.D. 807[129] special arrangements were made for the case of the recently conquered Frisians and Saxons.

If help should be needed in Spain, every five of the Saxons were to equip a sixth. If the need arose[183] nearer home, every two were to prepare a third. Or if the need arose still closer at hand, all were to come. Of the Frisians, counts and vassals and those who held benefices, all were to come, and of those who were poorer every six were to equip a seventh. There is no mention of mansi in the case of the Saxons and Frisians.

The Capitulare of A.D. 803 seems to show that in the longer settled districts of the Empire the possession of so many mansi, de proprio suo, was the prevalent form of landownership. So that, although the lex Salica remained still in force, the number of Franks living under it seems by this time to have borne a very small proportion to those living under Roman and other laws.

Family holdings under the Lex Salica were, however, probably not quite extinct. In the ‘Capitula generalia’ of A.D. 825[130] was inserted the following clause providing specially for family holdings, which may possibly have been holdings of terra Salica, though it is not so directly stated.

[184]

When we reflect that the Franks living under the Lex Salica must have thus sunk into a small minority, it becomes obvious that wider views must of necessity have entered into the minds of Charlemagne and his advisers, not only as regards land, but also as regards the currency.

The currency of the Lex Salica, with its solidi of 40 denarii, was, as has been said, after all a local one. And outside the old Frankish boundary, in the Wisigothic region, as well as probably in Italy, the Roman currency or local modifications of it apparently more or less prevailed. Ecclesiastics, as we have seen, even Alcuin himself, still used the terms of Roman currency in writing on monetary matters to their friends outside the Empire.

To them the denarius was still the Roman drachma of 72 wheat-grains of silver, commonly called the argenteus, in contrast to the gold solidus or aureus.

Gregory of Tours, when he has occasion to mention monetary payments, speaks of aurei, trientes, and argentei. In one story he speaks of solidi, trientes, and argentei.[131]

[185]

Further, in a supplement to the laws of the Wisigoths[132] is a statement under the name of Wamba Rex (A.D. 672-680), which apparently represents the monetary system in vogue south of the Frankish boundary. It states that the pound of gold equalled 72 gold solidi, so that the gold solidus was not the Merovingian solidus but that of Constantine. It then states that the ‘dragma’ of gold = ‘XII argentei.’ The argenteus being the silver drachma, the ratio of gold to silver was 1:12.

To Isidore of Seville, from his Spanish standpoint, the silver drachma was still the denarius.[133]

Thus the solidus was the typical gold unit or aureus, and the drachma was the silver denarius or argenteus.

It is remarkable that at a ratio of 1:10 twelve Wisigothic or Roman argentei or drachmas of silver equalled exactly in wheat-grains the Merovingian gold solidus current on the Frankish side of the Garonne or the Loire.[134]

[186]

It would seem, then, probable that traditionally and ‘according to ancient custom’ outside the Frankish kingdom the Merovingian gold solidus had been equated with twelve silver argentei or denarii of this reckoning, whilst within Frankish limits 40 of the silver tremisses and now of the pence of the nova moneta were reckoned as equal to the gold solidus of the Lex Salica.

But even to the Frank the 40 denarii of the Lex Salica may have become antiquated except for wergelds and other payments under its provisions.

The practice apparently had already grown up of reckoning 12 of the silver tremisses as a solidus of silver, twenty of which went to the pound of 240 pence, without, however, any pretence being made that this solidus of twelve silver pence was to be reckoned as equal to the gold solidus in making payments.

In the ‘Capitulare Liftinense’ of A.D. 743[135] a payment is enacted de unaquaque cassata solidus, id est 12 denarii. It was necessary to make this explanation.

It is not known how much earlier the practice of reckoning in pounds of silver of 20 solidi of 12 denarii came into vogue, but it was long before the issue of the nova moneta.

It might at first sight be thought that these twelve denarii may have been twelve argentei or drachmæ, but 240 drachmæ would make far more than a pound. And by an edict of A.D. 765[136] Pippin had enacted that out of a pound of silver not more than 22 solidi were to be made, one of which was[187] to go to the monetarius, and this clearly forbids the supposition that the solidus could be of twelve drachmæ. The pound would contain only eight such solidi.

Another Capitulare of A.D. 779[137] proves that the twelve denarii were Merovingian denarii of 28·8 wheat-grains.[138]

The issue of the new denarii of 32 wheat-grains was apparently made before A.D. 781, for in that year an edict was passed forbidding the currency of the old denarii.[139]

There was nothing very remarkable in this raising of the silver denarius from 28·8 to 32 wheat-grains. It was merely adopting the Imperial standard. But the extraordinary thing was that Charlemagne seems to have thought that he could, by law, substitute the solidus of 12 of his silver denarii for the gold solidus hitherto in use. The gold currency was going out and the silver currency was taking its place; but it was quite another thing to make the solidus of 12 silver denarii of 32 wheat-grains legal tender in the place of the gold solidus of the Lex Salica of 40 silver denarii of 28·8 wheat-grains. Yet this was what Charlemagne did, though perhaps only by degrees.

The change was made under the pretence of the[188] sanction of ancient custom. In the addition made to Tit. XXXVI. of the Ripuarian law the wording of the clause as to the payment of wergelds was ‘Quod si cum argento solvere contigerit, pro solido duodecim denarios, sicut antiquitus est constitutum.’ And this allusion to antiquity was repeated.

What was meant by this appeal to ancient custom it is not easy to see, unless it might be the probably long-established equation already mentioned between 12 Roman drachmas or argentei and the Merovingian gold solidus. Very possibly this equation was older than that of the 40 denarii to the solidus of the Lex Salica.

In a series of remarkable articles contributed to the Forschungen zur Deutschen Geschichte of 1862,[140] Dr. Ad. Soetbeer endeavoured to show, and with considerable force, that the introduction into the Lex Salica of the round numbers of denarii—forty to the solidus—was of comparatively late date; and if this hypothesis be correct, then it may be that Charlemagne was appealing to an earlier Frankish custom of reckoning 12 silver denarii or drachmæ to the gold solidus. But even if it could be so, obviously the denarii of 12 to the solidus of ancient custom cannot have been the same denarii as those which afterwards were reckoned at 40 to the solidus.[141]

Economically speaking, the substitution of the solidus of 12 denarii for the gold solidus, if they had been Roman drachmæ, would have been reasonable and might have made no change in prices; but the[189] substitution of 12 of the new denarii of 32 wheat-grains for the forty denarii of 28·8 wheat-grains, involving a ratio between gold and silver of 1:4, could only be justified by such a scarcity of silver as would prevent a rise in prices. That it was not so justified became very soon apparent.

Following the order of date, the Capitulare of A.D. 785, ‘de partibus Saxoniæ,’ shows that prices when quoted in the solidus of 12 pence immediately rose. The ox, the traditional value of which was two gold solidi, is reckoned as worth ten silver solidi. And M. Guérard has shown from the various instances given in the ‘Polyptique d’Irminon’ that on the estates of the Abbey of St. Germain-des-Prés the price of oxen remained at an average of eight silver solidi long after the death of Charlemagne.[142]

The Lex Salica continued in force with all its fines and wergelds stated in gold solidi of 40 denarii. And a Capitulare of A.D. 801[143] contains the following section which reveals the beginning of confusion:—

[190]

In A.D. 803 a clause was inserted in a Capitulare to the effect that all debts to the King should be paid in solidi of 12 denarii ‘excepta freda quæ in lege Saliga scripta sunt.’[144] This looks like a general reservation of the fines and wergelds of the Lex Salica. But it does not seem to have been so intended, or perhaps there was vacillation in the Councils of the Emperor.

A Capitulare of A.D. 816[145] contained the following:—

As between Salic Franks, therefore, the solidus of 12 denarii was to be legal tender in payment of wergelds and everything else.

This was all very well for debtors, but it was not so satisfactory to creditors. The exception that, when a Frank was killed by a Saxon or a Frisian, the wergeld was still to be paid in the solidus of 40 denarii, was an admission that to receive it in solidi of 12 denarii would have been a hardship. And as to the general public, the acceptance of payment[191] of debts in the denarii of the nova moneta had to be secured by penalties. A clause was introduced into the Capitulare of A.D. 794[146] according to which freemen refusing the new denarii were to be fined 15 solidi; whilst servi refusing them were to be publicly beaten naked at a post.

The permanent result was very remarkable. The new currency was maintained as legal tender in France, and the gold currency practically disappeared. Charlemagne and his successors coined very few more gold solidi and tremisses. King Offa and after him Alfred raised the English sceat to the penny of 32 wheat-grains, probably in imitation of the nova moneta, and Charlemagne’s pound of 240 of these pence—i.e. of 7680 wheat-grains of silver—became generally recognised as the pound of monetary reckoning in Western Europe.

So far Charlemagne triumphed. But in the meantime the artificial ratio of 1:4, sought to be established between gold and silver, could not be maintained. The pound of silver remained the standard in accounts, but one of Charlemagne’s successors restored the Imperial ratio of 1:12 and enacted that the pound of pure gold should no longer be sold at any other price than 12 pounds of silver. The date of the edict by which this restoration of the old ratio was secured was A.D. 864.[147]

These were the changes in the currency which[192] took place during the period of the formation of the Lex Frisionum and Lex Saxonum which we have next to examine.

No wonder that they should have introduced confusion and alterations in the text of the various clauses. And in order that we may be able to feel our way through them it now only remains that we should realise the actual difference between the amount of silver in the 40 denarii of the solidus of the Lex Salica and the amount of silver in the 12 denarii of the new solidus of the nova moneta which had thenceforth to take its place as legal tender in the payment of debts and wergelds.

In the first place, we know that the denarius of the nova moneta was a silver penny of 32 wheat-grains, so that Charlemagne’s solidus of 12 silver pence contained 384 wheat-grains of silver.

In the next place, whatever the denarii of the Lex Salica may originally have been, we know that the Merovingian silver denarii which had long been current in France and in England were of the same weight as the Merovingian gold tremisses, viz. 28·8 wheat-grains. Forty of these would contain 1152 wheat-grains of silver—i.e. exactly three times as much silver as the twelve denarii of the nova moneta.

So that if a wergeld were paid in silver it could now be paid in exactly one third of the weight of silver hitherto required under the Salic law, and so of every other debt.

[193]

Finally, not only was the ratio between gold and silver disturbed, but also the ratio between money and cattle. And this was an important matter in the payment of wergelds, for, as we have seen, the normal wergeld was 100 head of cattle. Obviously, wergelds would no longer be paid, as of old, either in gold or in cattle, when they could be paid at a third of the value in silver.

In framing new laws representing the old customs of the newly conquered Frisians and Saxons, the question would certainly arise whether the wergelds were to be stated in the equivalent of their old customary value in cattle, or reduced to one third of their old value by retaining the traditional number of solidi as if they were still of the gold value.

We have seen that Frisians and Saxons were exceptionally dealt with; but they had now become a part of the Empire, and, with the best intentions, how was the framer of their laws to describe their ancient wergelds which had hitherto been paid in gold solidi or in cattle? No one of the courses open to him would be without its difficulties.

He might record the customary wergeld as still to be paid in gold solidi; in which case the wergeld would be three times that of neighbouring tribes who could now pay their wergelds in silver.

Or he might divide the amount of the ancient wergeld by three, so as to reduce it to the lower level; in which case the number of animals in which by long custom the wergeld had been paid would be worth three times the wergeld payable in gold.

These would be the alternatives if the payment in gold were continued, and never as yet in any of[194] the laws had the wergelds been stated otherwise than in gold.

There was only one other way open to the legislator, if he wished to keep up the old customary values, viz. to translate the gold values at the old ratio into the new silver solidi: that is, to treble the gold figures of the ancient customary wergelds and make them payable in silver solidi. This would probably be the best course if he wished to continue the old relation of the wergelds to the animals in which they had hitherto been mostly paid. But then it might be difficult to enforce the payment of wergelds in silver in districts where the currency was still gold.

The legislator would, in any case, have to make up his mind whether to lower the ancient wergelds of the newly conquered tribes to a third of what they had been, or to keep up the value of the wergelds and the number of cattle in which they had from time immemorial been paid.

The wergeld in the popular tribal mind was a thing so fixed and so sacred that the makers of the Lex Frisionum and the Lex Saxonum were almost certain to find themselves between the horns of a dilemma.

II. THE LEX FRISIONUM.

The tribes conquered by Charlemagne, whose laws we have now to examine, differed from those whose laws and wergelds have been already considered in one important particular. They were not conquering tribes which had migrated into districts already under Roman law.

[195]

The conquests of Charlemagne over the Frisians and Saxons were conquests of German tribes settled as of old in their own countries. They were, moreover, conquests of still pagan tribes by Christian and partly Romanised Franks.

Frankish conquest had extended far into Frisian and Westphalian territory under the Merovingian kings. In Frisia Frankish influence was shown by the existence of Merovingian mints at Duurstede.[148] In Westphalia, at Soest and Paderborn, there were already Christian churches under the jurisdiction of the Archbishop of Cologne. But neither the conquest nor the conversion was completed till the time of Charlemagne.

We have already learned from Titles XXXI. and XXXVI. of the Ripuarian law that there were Frisians as well as Saxons, Burgundians, Alamanni, and Bavarians resident in the Ripuarian district. Moreover, it was directly stated that these immigrants were to be judged, not by Ripuarian law, but by their own law and custom. Further, being often isolated and without kindred near them to swear for them, if charged with crime they were to clear themselves by the ordeal of fire or lot. And finally their wergeld was stated to be 160 solidi, the inference being that this was the wergeld of the Frisian freeman in his own country, by the law and custom of which he was to be judged.

So that we approach the text of the Frisian law with this valuable earlier knowledge in our possession.[196] Two centuries before the date to which the collection of Frisian laws is assigned, the Ripuarian law bears witness that the Frisian wergeld was 160 solidi. Even if these clauses were not a part of the original text and did not date back to the sixth century,[149] the inference would be strong, and perhaps all the stronger, that such must have been the wergeld at the later date of the Frisian law. This earlier evidence is important, as, without the clue it gives us and with nothing but the Frisian law to guide us, we might very easily have been led to a wrong conclusion.

There seems to be no text of the Frisian laws earlier than that published by Herold at Basle in 1557, and he does not state from whence he obtained the text followed by him.[150]

Moreover, it is clear from internal evidence that the laws as we have them are by no means of one single date. They form, in fact, a collection of the customs of the three districts into which Frisia was divided, with modifications and various additions made to the original collection at different times.

At first sight there are inconsistencies in the statements of the wergelds, and, as in other cases, the key to an understanding of them is to be found, to some extent, in close attention to the currencies in which the amounts of the compositions are stated.

It is not necessary to enter into any discussion of the various theories suggested to meet the difficulties[197] caused by the confusion of the various currencies. The knowledge already obtained in the course of this inquiry will, I think, if adhered to, suffice to clear the way sufficiently for our purpose. Bearing in mind that the ‘Lex Frisionum’ as we have it is a compilation with various additions, the inconsistencies in the text will be no surprise provided that the reason for their occurrence is apparent.

Frisia was divided into three divisions, and in certain glosses which appear late in the laws[151] we are told that each division had a separate solidus of its own.

(1) Between the Laubach and Weser (the Northern division) the solidus is described as of two denarii, i.e. tremisses, of the nova moneta.[152] This solidus, we shall find, was like that of the Saxon tribes on the Eastern side of the Weser. The solidus, being of two tremisses, contained sixty-four wheat-grains of gold.

(2) In the middle division, between the Laubach and Fli, the solidus is said to have been of three denarii, or tremisses, of the nova moneta,[153] i.e. ninety-six wheat-grains of gold. This solidus is the gold solidus of three tremisses after it had been raised by Charlemagne to the standard of the Eastern Empire.

(3) In the Southern or Western divisions, between the Fli and the Sincfal, the solidus was 2½ denarii[198] or tremisses ad novam monetam, i.e. eighty wheat-grains of gold.[154]

But it seems to be clear that the statements of the wergelds and other fines in earlier clauses of the laws are not made in these local solidi.

Thus in Title XVI. we are told that Inter Laubachi et Sincfalam, i.e. in both Middle and Southern divisions, in cases of homicide the payment to the lord for breach of his peace (de freda) was thirty solidi, ‘which solidus consists of three denarii,’ although the local solidus of the Southern division was that of 2½ tremisses. Sometimes the fines are stated in solidi of three tremisses and sometimes in solidi of 20 to the pound. There is no difficulty, after what we have seen in other laws, in recognising in the solidus of three tremisses the gold solidus, and in the solidus of 20 to the pound the silver solidus of the Frankish Empire.

Again, we at once recognise in the term nova moneta the new standard of Charlemagne, and in the term veteres denarii, which also occurs in the laws, the gold or silver tremisses of the Merovingian currency before the monetary reform of Charlemagne.

All this is exactly what might be expected in laws of somewhat different dates, some of them perhaps going back to the time of the Merovingian conquests, and others following upon the conquests of Charlemagne.

[199]

Having thus so far cleared the way, we pass on to the amounts of the wergelds as stated in the Lex.

Title I. is headed Incipit lex Frisionum, et hæc est simpla compositio de homicidiis. And the wergelds of the three districts as stated in the text and glosses may be tabulated as follows:—

These wergelds, with one exception, are alike throughout, so far as regards the proportions between the three classes. The wergeld of the liber is double that of the litus, and that of the nobilis double that of the liber except in the Middle district, in which the wergeld of the nobilis is only 1½ times[200] that of the liber. In the same district there is an additional payment to the propinqui of the litus, his proper wergeld, half of that of the liber, going to his lord.

It will be observed that in the last district only are the denarii (i.e. tremisses) stated to be novæ monetæ. The inference is that in the other two districts the tremisses, and therefore the solidi, were of the lower Merovingian standard.

The district in which the tremisses were novæ monetæ was the Southern district, first conquered and most thoroughly brought under Frankish influence. The other two districts had apparently not yet so completely come under it.

Accordingly, if we take the 106⅔ solidi of the nobilis of the Northern district to be of Merovingian standard, the result is (106½ × 86·4 wheat-grains) 9216 wheat-grains, or exactly 16 Roman ounces, i.e. the mina called, as we have seen, the Attic mina, which in Scandinavian usage was divided into two gold marks.

The wergeld of the nobilis in the Middle district between the Laubach and the Fli is stated to be 80 solidi instead of 106 solidi and two denarii. But as the wergeld of the liber and litus are the same as those of the Northern district, and therefore also presumably expressed in Merovingian currency, the wergeld of 80 solidi of the nobilis, to be consistent, should also be of the same Merovingian standard. And so it seems to have been, for 80 Merovingian solidi (80 × 86·4 wheat-grains) make exactly the Roman pound of 6912 wheat-grains or 12 Roman ounces, i.e. 1½ gold marks.

[201]

In the wergelds of both Northern districts, therefore, an original reckoning in gold marks of the Scandinavian system seems to have been afterwards translated with exactness into an uneven amount and fractions of solidi of the Merovingian standard.

We may therefore state the wergelds of the two districts north of the Zuider Zee in marks of the Scandinavian system thus:

That these wergelds could be stated thus evenly in gold marks of the Scandinavian system, whilst in Frankish solidi they could be stated only in uneven numbers and fractions, is an interesting fact. It seems to show that the original wergelds went back to a time when the trade intercourse of Northern Frisia was connected mainly with Scandinavia, the Baltic, and the Eastern trade route. In ‘Beowulf’ we found that Frisia was on the horizon of the area included within the vision of the poet, the interest of whose story lay chiefly in the Baltic.

Now let us compare the wergeld of the liber in these districts, viz. 53 solidi and 1 tremissis of Merovingian currency, with what the statement in the Ripuarian law would lead us to expect it to have been, viz. 160 of the same solidi. It is exactly one third of what it ought to be. And the inference from what we have learned in the last section would be that the maker of the laws had divided the wergeld of ancient custom by three.

But for the moment we pass on to follow further the text of the Frisian laws.

[202]

In s. 11 of Tit. I. it is enacted that if any one, whether nobilis, liber or litus, or servus, shall slay the servus of another, he shall compound for the servus according to his value. And in s. 13 of the same title it is stated that if a slave shall kill either a nobilis or liber or litus, unknown to his lord, the lord of the slave shall swear that he did not order it and pay twice the value of the slave. But if the lord cannot deny that he ordered it he must pay for the homicide as if he had done it with his own hand.

In Title IV. it is again enacted that if any one shall kill the slave of another he shall be compounded for at the value put upon him by his lord. And the same rule is made to apply to the case of a horse, ox, sheep, goat, pig, and all domestic animals, except the dog: they are all to be paid for at the owner’s estimate of value, or the alleged slayer must clear himself with as many oaths as the judge may require.

The dog is the only animal whose value is fixed by the law. And its value at first sight was not the same in the several divisions.

The difference between the value of the dog in the Northern and the other divisions can hardly be other than one of different currencies. Probably the values for the Northern division may be silver values. It[203] may, however, be remarked in passing that the value of a dog in any case is not lightly to be regarded as excessive. Its high value in the Frisian laws, and also in other laws, shows how dependent the tribes surrounded by forests were upon its help. In the Cymric Codes, as we have seen, the herdsman’s dog was worth as much as an ox. In the Alamannic Laws the shepherd dog which could kill a wolf was valued at 3 gold solidi, or half as much again as the ‘best ox,’[158] and in the Lex Salica the canis pastoricalis[159] was valued at 3 solidi. It is not difficult, therefore, to understand how in Frisia the dog which could kill a wolf should be worth 3 gold solidi, and the ordinary shepherd dog a gold solidus.

We now come to a set of clauses in which the differences between the three districts again appear, and in one of which, viz. again the district between the Laubach and the Weser, we meet with values stated in silver solidi of 20 to the pound, i.e. of twelve pence.

These clauses are interesting as illustrating Frisian methods of compurgation, the ordeal of the lot and of hot water, and trial by battle, all of which evidently belong to ancient tribal custom.

Title XIV. relates to the slaying of a man in a crowd, and describes the means taken to ascertain whose deed it was. Each division had its own custom. That of the Middle district is first described:—

This law prevailed between the Laubach and the Fli. But between the Fli and the Sincfal for a case of this kind the following was the custom:—

[205]

Between the Laubach and the Weser the following was the custom:—

The payment of sixty solidi—i.e. three libræ—clearly indicates that the solidus of this clause was the Frankish silver solidus of 12d., of which 20 made the pound of silver. And this helps us to understand that the compositions described in the immediately succeeding and closely connected clause are also silver values. (Tit. XV.)

This is the custom in the same region observed for the composition of wergeld:—

[206]

There can, I think, be no doubt that the libræ of this clause are silver pounds, and further, that as they are stated to be pounds ‘per denarios veteres’ they must be pounds of Merovingian and not of Carlovingian weight.

The pounds of this statement are therefore Roman pounds, of 240 Merovingian pence. Let us compare then the wergeld of the liber of 5½ such pounds of silver with the wergeld of the liber as stated in Tit. I., which we saw was equivalent to one mark of gold. Following the Scandinavian ratio of 1:8, the mark of 8 ounces of gold would equal 64 ounces of silver—i.e. 5⅛ pounds instead of 5½. The silver wergeld of the nobilis would equal 10⅔ pounds instead of 11. The reckoning is rough, but near enough to justify the conclusion that what was aimed at was the nearest even pound of silver, and that therefore the wergeld of the one statement is the equivalent of the wergeld of the other statement.

At the same time the fact of the reckoning being throughout in Roman, i.e. Merovingian pounds, and not in those of Charlemagne’s nova moneta, is instructive. It shows that this clause belongs to the period during which the silver currency was pushing its way into Frisia. A reckoning in silver had become necessary, although, as we happen to know, the Frisians had a special liking for gold. They continued to coin gold much longer than the Franks, and some years later than the date of the laws. The Frisians were in close contact with the mint at Duurstede, which was in fact the commercial metropolis of the North at the date of the laws. The mint at Duurstede continued to coin gold coins till the[207] city was destroyed by the ravages of the Northmen in A.D. 837, and it was from these Duurstede Frisian coins that the types were taken of the first Scandinavian coinage.[160] In the meantime the close connection between Frisia and the Scandinavian district is quite sufficient to account for the Scandinavian ratio of 1:8 being the one used in the translation of the gold wergeld of the district next to the Weser into a silver equivalent.

Let us now at last translate the wergelds of the three Frisian districts, as stated in Tit. I. in gold solidi of three tremisses, back again into what they must have been when reckoned in the local solidi. If originally they were reckoned in these local solidi the result should be in even numbers.

It is interesting to observe that the wergelds of the two districts north of the Zuider Zee, when translated back again into local solidi, turn out to have been in even numbers of such solidi, as well as in even gold marks of the Scandinavian district,[208] whilst those of the Southern district, most under Frankish influence, make even numbers of the local solidus but not of the mark.

When these Frisian wergelds in local solidi are regarded in connection with the fact that the wergelds on the east or Saxon side of the Weser were, as we shall find, also paid in a local solidus, and that this Saxon local solidus, like the solidi of the North Frisian district, was of two tremisses, and further that it represented the value of the one-year-old bullock, we are led to conjecture that the Frisian local solidi also may have represented the animal in which the wergelds were originally reckoned and paid. And this may perhaps be confirmed by the fact that, down to comparatively modern times, the East Frisian silver currency consisted chiefly of the gulden and its one-tenth the schaap. Possibly the gulden of this silver currency may point back to a time when the ‘gold piece’ was reckoned of the value of ten sheep.[161] But this is conjecture only. The dog, as we have seen, was the only animal whose value was fixed in the laws.

The fact that the gold and the silver values of the wergelds of titles I. and XV. of the lex seem to correspond leads up once more to the difficult question why the wergeld of the liber should be exactly one third of what the Ripuarian law apparently declared it to have been.

Richthofen, in his preface and notes to the Frisian laws in the edition of Pertz, points out that in later[209] additions to the laws there is a curious duplication and triplication of figures which has to be accounted for. The facts seem to be these:—

In Tit. XXII. De Dolg, relating to the Middle district and forming part of the more ancient law, the fines for wounding are first given for the liber, and then an explanation is made in the Epilogue that those for the nobilis were one third higher and those for the litus one half less. The composition for the eye is stated to be half the wergeld.

Then, under the heading Additio Sapientium, Tit. II., the amount for the hand is stated to be ‘25 solidi et 5 denarii.’ And after the mention of the amounts for the several fingers are the words, ‘Hoc totum in triplo componantur.’ The payments for hand and eye are generally alike, and three times 25 solidi and 5 denarii = 80 solidi, i.e. half a wergeld of 160 solidi.

Immediately following these words Tit. III. begins with the statement that the foot entirely cut off is to be compounded for as the hand, i.e. by 53 solidi and 1 tremissis, being double the previous amount. The payment for the eye put out is ‘ter quadraginta solidi,’ i.e. 120 solidi. Then whilst in the title De Dolg the ear is valued at 12 solidi, in Tit. III. of the Additio it is valued at ‘ter duodecim solidi.’ Again, according to the title De Dolg, if both testicles were destroyed, the whole wergeld was to be paid: and in Title III. of the Additio the fine has become ter 53 solidi and 1 tremissis, three times the wergeld of the liber in Tit. I.

It is not needful to pursue the comparison further than to point out that Richthofen had some reason at any rate to form the opinion that in the additions to[210] the law made, as he thinks, after A.D. 785 and probably about A.D. 802, the wergelds were trebled, as well as some of the payments for wounds; and that the inference from the Ripuarian laws that the Frisian wergeld was 160 solidi was therefore correct.[162]

So far Richthofen’s contention is, I think, a correct one.

But what was the reason of this trebling of the wergeld in the additions to the laws?

Was it that the ancient wergelds were originally one third of those of neighbouring tribes and trebled at some auspicious moment to make them correspond with others; or have we not rather to do with the results of that confusion in the currency which was caused by the endeavour to force into use the silver solidus of 12 pence as the equivalent of the gold solidus?

This conjecture standing by itself on the evidence of these laws alone would be too hazardous to build upon, and it is not necessary to consider it further in this place. The matter of chief importance is that, all things considered, there seems to be fairly sufficient evidence that the wergelds of Tit. I. represent the ancient wergelds divided by three, and that accordingly we may take the wergeld of the liber in the two Northern districts of Frisia to have[211] been three gold marks or 160 Merovingian gold solidi,[163] as stated in the Ripuarian laws.

With regard to the distribution or division of the wergeld amongst the relations of the person slain, the laws mention only the custom of the Middle districts, according to which two thirds of the wergeld went to the heir of the slain and one third ‘ad propinquos proximos.’ They give no information as to how the ‘propinqui proximi’ divided their third amongst themselves, or to what grade of kinship this class of relations extended.

Happily, however, Dr. Brunner, in his informing essay on ‘Sippe und Wergeld’ already quoted, has been able to supplement the meagre information given by the laws as to wergelds with further details gained from later local sources.

In his section (p. 25) on ‘Die Friesen zwischen Zuidersee und Weser,’ he gives an illustration of the way in which under later custom the payment of the wergeld was divided amongst the relations of the slain. He states that the North Frisian tale, i.e. the third share which the kindred had to pay, was known as the mentele or meitele (magzahl).

In a legal document of ‘Westerlauwersches Friesland’ the mentele of the kindred is described as 4 lbs. 5 oz. 6⅔d., and the erbsühne, or two thirds to be paid by the heirs, as 8 lbs. 10 oz. 13⅓ pfennig. The pound, we are told, is 12 oz. of 20d., so that here we have clearly Frankish currency and silver. The[212] third and the two thirds together make a whole wergeld of 13 lbs. 4 oz. of silver. Now in the first place if, as we probably should do, we were to consider this wergeld to be stated in pounds and ounces of Charlemagne’s nova moneta, it would be not very far from treble the amount of the wergeld of the liber in Titles I. and XV. of the laws. And this, so far as it goes, confirms the Ripuarian statement that the ancient Frisian wergeld was one of 160 solidi.[164]

Let us now see how the third falling on the kindred was divided.

The one third of the mentele of the kindred (moeg) was divided thus:—

This interesting illustration of the payment of a Frisian wergeld, though of later date than the laws, confirms the statement in the laws that in its division the immediate heirs of the slain took two thirds and the propinqui proximi one third. It shows that at[213] a later date the immediate ‘erbsühne’ was two-thirds, and the share of the kindred one third. And it adds the important point that the kindred who paid, and by inference shared in the receipt of the one third, were confined to the descendants of the great-grandparents, both paternal and maternal, of the slayer or of the slain.

III. THE LEX SAXONUM.

In turning from the Frisian to the Saxon district, we have again to notice that, as in the Frisian instance, so in the Saxon, the territory over which the law had force was divided into several districts belonging to allied but separate tribes with their own peculiar customs.

The Westfali and the Ostfali and the Angrarii were the chief tribes with which the Lex Saxonum and the Capitularies had to deal. The ‘Saxones Bortrenses’ and ‘Septentrionales’ are also mentioned in one of the Capitularies, but these do not appear to be of much importance to our inquiry.

The stubborn resistance of the Saxon tribes to the Frankish conquest, and the sanguinary character of the Saxon wars of Charlemagne, may well have made a cleaner sweep of local custom from these districts than had taken place in others. And this may explain to some extent the disappointing silence of the Lex Saxonum upon questions of custom which might otherwise have been expected to afford useful and interesting points for comparison with the Kentish and Anglo-Saxon Laws. Moreover, the wergelds as stated in the text are, like those of the Frisian Laws[214] at first sight so misleading that only a very careful regard to the changes in Frankish currency can make their amounts intelligible, and bring them into line with those of neighbouring tribes.

Happily, in approaching the wergelds of the Lex Saxonum, we can do so, as in the case of the Frisian wergelds, with the statement of the Ripuarian Law in mind, that the Saxon as well as the Frisian wergeld was 160 solidi. And it is well that we can do so, for otherwise we might very easily lose our way.

The Lex Saxonum begins with a title ‘de vulneribus’ which describes the payments to be made for the different wounds inflicted upon a nobilis. Title II., ‘de homicidiis,’ next follows with a statement of the wergelds.

Much controversy has arisen upon the two extra payments ‘ruoda’ and ‘in premium;’ but whatever they may have been, they need not surprise us. Though we may not be able to identify them with the ‘halsfang’ or the ‘wites’ and ‘bots’ of Anglo-Saxon laws, they were probably payments of something of the same kind, additional to the wergeld.

It is more important to remark the absence altogether of any mention of the ordinary ‘liber’ or ‘ingenuus’ between the nobilis and the litus, especially as in the title on theft the three classes are all mentioned.

[215]

According to Clause 2 of the Tit. II. of the Lex, married women had the same wergelds as men. Those unmarried were to be paid for with a double wergeld. And by Clause 4 a servus slain by a nobilis was to be paid for with 36 solidi.

By Clause 5:

Title IV. on Theft is interesting as, besides mentioning the liber, it fixes the value of the four-year-old ox at the date of the clause at 2 solidi, i.e. the old ox-unit.

Theft of bees from within another’s fence or of things to the value of two solidi by night from a house, or of things of any kind, day or night, of the value of three solidi, was to be capitally punished. Theft of things of less value than three solidi was to be compounded for ninefold, and pro freda the nobilis was to pay 12, the liber 6, and the litus 4 (? 3) solidi.

In Clause 6 of Title II. is the following:—

[216]

This clause is valuable as showing that, as in the customs of Frisia and most other Low German tribes, the murderer paid two thirds and his kinsmen one third of the wergeld in ordinary cases.

The murderer and his children alone had to pay the eight parts added for the aggravation of the crime by concealment.

That the Lex Saxonum is in some things at least a record of local custom is shown by the fact that, as in Frisia, varieties were recognised in the several divisions of the country.

The payment for taking a wife, in all the divisions, was 300 solidi (Tit. VI.), to be paid to her parentes if with their consent. If with her consent, but not with theirs, the payment was doubled. If she were seized without the consent of either, she must be restored to her ‘parentes’ with 300 solidi to them and 240 to her. Tit. VIII., however, shows that with regard to dower the customs of the several districts varied. Among the Ostfali and the Angrarii, if a wife bore children, she, the mother, retained the dower received on marriage for her life and left it to her children. Should she survive her children her next heirs received it. If there were no children, the[217] rule was dos ad dantem, i.e. it went to the husband, or, if he were not alive, to his heirs. Amongst the Westfali, after a woman had borne children she kept the dower till her death. After her death, dos ad dantem, it went to the husband or the husband’s next heirs. Further, Tit. IX. states that as regards what had been acquired by man and wife together, amongst the Westfali the wife received half, but amongst the Ostfali and Angrarii nothing: she had to be content with her dower.

The final clause of the laws, which describes the currency in which the payments were made, is important. According to the best manuscripts it was as follows:[165]—

This was originally the final clause. But the following additions were afterwards made. In the Corvey Code:—

[218]

And in the Codex Lindenbrogius:[166]—

According to the original final clause, if it had been followed in the text of the Lex Saxonum the wergelds ought to have been stated in gold solidi of two tremisses, representing the bullock, or a sheep with her lamb. And the lesser penalties for wounds, &c., should have been stated in solidi of three tremisses, representing the ox of 16 months. These values in gold tremisses would then have been consistent with that of the full-grown four-year-old ox as stated in Tit. VI. at two solidi—i.e. the normal value of the ox before the change in the currency.

But, as it is, the text is not consistent throughout. Returning to the statement of the wergelds:

we are struck at once with the excessive amount of that of the nobilis. But if the solidi were of two tremisses, as they should have been, then, translated into solidi of three tremisses, the amounts would stand thus:—

These amounts appear to be still far too large; whether regarded in cattle or in gold.

[219]

It seems probable that, in spite of the last clause, the wergelds of the Lex Saxonum, in the text as we have it, are described in Charlemagne’s silver solidi of 12d.—the solidi which at the moment he was trying at a ratio of 1:4 to substitute for gold.

Very nearly contemporary with the Lex Saxonum is Charlemagne’s Capitulare de partibus Saxonie, A.D. 785.[167] In this document no wergelds are mentioned, but other fines are described which may be compared with them. And it will be noticed that three classes are mentioned—nobilis, ingenuus, and litus.

In s. 19, for refusal to baptize an infant within a year of birth:—

So again in s. 20 for illicit marriage, and in s. 21 for engaging in pagan rites:—

These fines were evidently payable in the silver solidus, for in s. 27 the penalty for a man remaining at home contrary to the bann was to be 10 solidi or one ox. Obviously this is the value of the ox in silver solidi before they were made legal tender. Its gold value was only 2 solidi, as stated in Tit. VI. of the Lex. And, as we have seen, the value of the ox in the silver solidus of twelve pence was maintained at an average of about 8 solidi.

Twelve years later in date another Capitulare was issued, entitled Capitulare Saxonicum and dated[220] A.D. 797.[168] It was the result of a conference and contract between Franks and Saxons of the three tribes, Westfali, Angrarii, and Ostfali. According to s. 3 the Saxons agreed that whenever, under the laws, Franks had to pay 15 solidi, the Saxon nobilis should pay 12 solidi, ingenui 5 solidi, and liti 4 solidi.

Then follows a clause which is interesting as showing that the payment of wergelds still was a general practice. It enacted that when a homicide had occurred and a case had been settled in a district by the neighbours, the pacificators should, according to custom, receive 12 solidi for their trouble (pro districtione), and in respect of the wergeld (pro wargida) they should have sanction to do what according to their custom they had been used to do. But if the cause had been settled in the presence of a royal Missus, then it was conceded that on account of that wergeld the neighbours should still have their 12 solidi; and that the Missus of the King, for the trouble taken in the matter, should receive another 12 solidi, ad partem Regis. In clause 7, homicide of a Missus regalis, or theft from him, was to be paid for threefold.

Further, in Clause 9, the King, with the consent of Franks and Saxons, was to have power at his pleasure, whether propter pacem, or propter faidam, or for greater causes, to double the amount of the usual bann of 60 solidi, making it 120 solidi, and to insure obedience to his commands by any amount up to 100 or even 1000 solidi.

[221]

Lastly, in the final clause is the following:—

So that in this Capitulare of A.D. 797, issued just before Charlemagne became Emperor, there is the clear statement that the one-year-old bullock is still to be reckoned as one solidus, and the further statement that in silver 12 pence make the solidus. And this in a clause headed with the words: ‘Moreover it is to be noted what the solidi of the Saxons ought to be.’

The fact therefore seems to be that these Capitularies relating to the Saxons, and the Lex Saxonum, following upon the Conquest of the Saxons, date from the middle of the time when the change in the currency from gold to silver was taking place, and the silver solidus of 12 pence, first of Merovingian standard and ultimately of the nova moneta, was by law made equivalent for payments to the gold solidus of the Lex Salica of three gold tremisses or of 40 pence.

Now, having derived this information from the Capitularies, let us turn back to the laws.

[222]

In Tit. I. De vulneribus, the penalty for destroying another’s eye is 720 solidi, exactly half the number of solidi in the wergeld of the nobilis, and for both eyes 1,440 solidi—i.e. exactly the amount of the whole wergeld of the nobilis. These proportions are found in several other laws, and were quite natural if the payments were made in both cases in the same solidi. But these wounds ought, according to the final clause in the law, to have been paid for in the solidus of three tremisses, while the wergelds should have been paid in solidi of two tremisses.

Clearly they are not stated in different solidi, for if for a moment we take them to be so, then the two eyes of the nobilis would be paid for at a higher value than his life.

Further, if we look at these payments for wounds carefully, it becomes clear that they cannot be gold values. Three hundred and sixty gold solidi for a thumb and 260 for the little finger of a nobilis are quite impossible fines. The little finger of the Saxon nobilis cannot have been valued at more than the ordinary freeman’s wergeld under the Salic and Ripuarian Laws.

We conclude then that, in spite of the last clause in the law, these values, both for wounds and homicide, are silver values, and that the figures in the text have at some date or other been substituted for the original ones to meet the change in the currency.

Let us try to realise what the effect upon the wergelds of the Lex Saxonum would be of Charlemagne’s substitution of the silver solidus of 12d. for the gold solidus.

Up to this time the wergelds had been paid in[223] bullocks valued in gold at the solidus of two tremisses, and the equation was one no doubt of ancient custom. Now the Capitularies made them payable in silver at 12d. to the solidus.

One result became at once apparent. In the Saxon district the value of the ox went up, as we have seen, from two of the gold solidi to ten of the new silver solidi—an excessive rise, no doubt, and one likely to startle everybody. As regards most debts the change did not matter very much. The debtor got the advantage. But as regards wergelds hitherto payable in cattle and in gold it mattered very much indeed. It meant that a wergeld of 100 head of cattle could be paid in silver at one third of their value. And Charlemagne’s advisers soon found this out. What if a Frisian or a Saxon killed a Frank? Was he to be allowed to escape with a silver payment of one third the value of the cattle? Certainly not; and so, as we have seen in the Capitularies of 781 and 801 enforcing the receipt of the silver solidus of 12d. for all debts, an exception was made of wergelds payable by Saxons and Frisians who killed a Salic Frank. These were still to be paid for, as heretofore, in the solidus of 40d. of the Lex Salica—i.e. the gold solidus of three tremisses.

This, so far as the wergelds were concerned, set the matter right when a Saxon killed a Frank; but it did not set it right in the ordinary case of a Saxon slaying a Saxon.

How could this be remedied but by altering the figures of the wergeld and the compositions for wounds, and inserting silver values instead of the gold ones? This seems to have been clumsily done,[224] the other clauses in the laws being apparently left unaltered or only partially altered. But assuming that the wergelds as they appear in the present text of Tit. II. are stated in silver solidi of twelve denarii, let us divide them by three, so as to restore them to gold values in solidi of three tremisses.

The wergeld of the nobilis of 1440 solidi divided by three becomes 480 solidi of three tremisses. And if, following very common precedents, we take this wergeld of the nobilis, whether from his noble birth or natural official position, to be a triple wergeld, then the missing wergeld of the liber or ingenuus would be 160 solidi, as the passage in the Ripuarian laws so often quoted declared it to be.

The wergelds would then stand thus:—

or in the local solidi of two tremisses:—

These then are the figures which, if we are right, were the original figures of the Title De homicidiis.

IV. LEX ANGLIORUM ET WERINORUM, HOC EST THURINGORUM.

We may probably follow Richthofen[169] in his conclusions that the Thuringians of these laws were the tribes settled with the Anglii and Werini in North Thuringia, and that they were promulgated under Charlemagne about A.D. 802.

[225]

In the first title the wergelds for homicide are stated:—

These are evidently unaltered gold values.

The rest of the first five titles relate to wounds, and we need only mention that the destruction of an eye, hand, or foot, or a blow causing loss of hearing, was to be paid for with half the wergeld of each class, following in this respect the custom of the Frisian and Saxon tribes.

These five titles in the Corvey Manuscript of the tenth century constitute a whole under the title ‘Lex Thuringorum.’ The remaining titles are, in this manuscript, added to the Lex Saxonum, to which, however, they do not appear to belong.

The triple wergeld of the Adaling of these laws may have been the result either of noble birth or official position, or both combined. The wergeld of the liber of 200 gold solidi, presumably of three tremisses, seems to connect the customs of the Thuringian tribes of these laws with those of the Salic and Ripuarian Franks rather than with those of the Saxons and Frisians. It is worth notice, too, that, while in the Lex Saxonum and the Lex Frisionum the figures seem to follow a duodecimal system, in these laws the more usual decimal reckoning is retained as in the Lex Salica.

The fact that among the additional titles there is one ‘De alodibus’ connects still further these laws, notwithstanding their later date, with the Salic and Ripuarian laws which contain similar titles. And it[226] is worth while, for purposes of comparison, to give it at length. (Tit. v.)

As in the other laws so under these rules the alod clearly embraced both the land and the ‘pecunia’ and ‘mancipia’ upon it. Its object, like that of the similar clauses in the other laws and also like that of the Edict of Chilperic, seems to have been to protect the land in ordinary cases from passing over ‘from the spear to the spindle,’ while at the same time sanctioning inheritance by females even in the land of the alod when otherwise there would be danger of its passing away from the kindred altogether.

In certain cases the land of the alod was made to go to male heirs while the ‘pecunia’ and ‘mancipia’ upon it went to females.

Whether the word ‘pecunia’ in such cases should be translated by ‘cattle’[170] or the wider word ‘chattels,’ it must have included the cattle, and at first sight it is not easy to see how the rule would work which gave the cattle of the alod to a female and the land to a distant male heir. The cattle must in the nature of things have remained or be put upon land, and the awkward question arises upon whose land[228] they remained or were put. And so we are brought once more to the practical question of the position of women in relation to the land. That in certain cases in default of male heirs they could inherit land is one thing; but this question of the cattle and slaves involves quite another.

When a sister received her portion or gwaddol under Cymric custom, and when she received so many cows for her maintenance from the chief of kindred, she must have had rights of grazing for her cattle in the family herd of her gwely. Till she married, her cattle would graze with the cattle of her paternal gwely; and when she married, with the cattle of her husband’s gwely. And so under the rules of this clause ‘De alodibus’ it does not follow that the distant male heir succeeding to the land of the alod was to evict her and her cattle from it. With the land he had to take also the responsibilities involved in the family holding. Clause V. states that to whomsoever the inheritance of the land shall come, to him ought to pertain the coat of mail, i.e. the birnie, and with it the duty of the chief of the kindred to avenge his kin and to see to the payment of wergeld if any one of the kin should be slain. Read from this point of view this clause ‘De alodibus’ becomes good evidence that, whatever changes may have been made as to female inheritance, the land of the alod had not yet lost all its tribal traits. It had not yet become the ‘res propria’ of an individual possessor under Roman law.

[229]

V. THE SO-CALLED LEX CHAMAVORUM.

This document, according to most recent authorities, relates to a district between the Frisians and Saxons to the North and East, with the river Meuse to the South.[171]

Its real title seems to be Notitia vel commemoratio de illa euva quæ se ad Amorem habet, and it seems to be not so much a code as a memorandum of the wergelds and fines of a Frankish people settled in the district alluded to. Probably in date it may belong to the time of Charlemagne, but before his changes in the currency.

It is of some interest to this inquiry because of its peculiar position, as relating to a tribe or people under Frankish rule, and yet with customs of its own which have survived Frankish conquest.

The Notitia starts with the declaration that in ecclesiastical matters, as regards the bannus dominicus, the same laws prevail ‘as other Franks have.’

And then it at once describes the wergeld, as follows:—

Then follows a clause (VII.) which states that if any ‘Comes’ be slain in his own ‘comitatus’ the wergeld is to be three times that according to his birth.

[230]

The Homo Francus thus has a triple wergeld, like the Comes. But the Comes may possibly be not ingenuus. He may be a lidus with official position, and so presumably, according to Clause VII., with a threefold wergeld of only 300 solidi.

In the next clause the Royal ‘Missus’ is put in the same position while on the King’s business. His wergeld is also to be trebled.

What, then, is the Homo Francus with a wergeld three times that of the ordinary ingenuus of the district of Amor?

The wergeld of the latter is the full normal wergeld of 200 solidi. The Homo Francus in this district was therefore very much above the ordinary freemen of other laws. He was evidently a Frankish landowner on a large scale, towering in social position above the ordinary freemen of the district.

The casa and curtis of the Homo Francus alone were protected by special clauses (XIX. and XX.), and of him alone are any hints given as to kindred or inheritance. Clause XLII., in the following few words, enlightens us as to his social position:—

We must probably consider the privileged position of the Homo Francus as presumably the result of Frankish conquest. The great landowner may have been the holder of a benefice, or a tenant in capite placed upon the royal domain with ministerial[231] and judicial duties, and the triple wergeld may fairly be assigned to his official position.

But to return to the wergelds.

The payment pro fredo seems to have been equal to an additional one third of the wergeld.

From clauses XX. and XXXII. it appears that the value of an eye or hand or foot was one quarter of the wergeld, instead of half as in the Salic and Ripuarian Laws.

Theft was to be paid for ninefold with four solidi pro fredo.

The further clauses regarding theft in this border district of forests and cattle and mixed population are not quite easily understood, nor need we dwell upon them.

In c. XXX. the penalty for letting a thief go without bringing him before the Comes or centenarius was 60 solidi, as in the Ripuarian Laws.

VI. CONCLUDING REMARKS.

Before passing from the laws, the compilation of which seems to date from the conquests of Charlemagne, it may be well to note that, regarded from the point of view of the wergelds, the tribes whose customs have been examined in the last two sections seem to have belonged to the Frankish group with wergelds of 200 gold solidi, while on the other hand the Frisians and Saxons seem to have belonged to the other group with wergelds of 160 gold solidi.

This grouping of the tribes may not be exactly what might have been expected.

[232]

Geographically the Frankish group is sufficiently compact. The other is widely extended and scattered. Frisians and Saxons remain in their ancient homes. The Alamannic, Bavarian, and Burgundian tribes have wandered far away from theirs. But in their northern home they may have been once sufficiently contiguous to have shared many common customs and among them a common wergeld of 160 solidi.[172] Settled in their new quarters, the Rhine and its tributaries seem to have been the great highways of commercial intercourse and the connecting links between them. Immigrants from them all met as strangers (advenæ) in the Ripuarian district, and, as we have seen, we owe our knowledge of some of their wergelds very much to the recognition of them in the Ripuarian law.

[233]

CHAPTER VIII.
THE TRIBAL CUSTOMS OF THE OLDEST SCANDINAVIAN LAWS.

I. THE MONETARY SYSTEM OF SCANDINAVIA.

The facts needful for the understanding of the monetary system of the Scandinavian tribes need not detain the reader very long.

The weight system applied to gold and silver was that evidently derived from the Eastern Empire.

It consisted of the mark, the ore, and the ortug. The mark was divided into eight ores or ounces, and the ore or ounce into three ortugs, which were in fact staters or double solidi. The ounce being the Roman ounce of 576 wheat-grains, the ortug contained 192 wheat-grains, and was the exact counterpart in wheat-grains of the Greek stater, i.e. Professor Ridgeway’s ox-unit. Reckoned in wheat-grains, two Scandinavian marks of 8 ounces were, as we have seen, exactly equal to what the early metrologists called the (light) Mina Attica, which consisted of 16 Roman ounces or 9216 Roman wheat-grains. Four gold marks thus made a heavy gold mina, traditionally representing a normal wergeld of 100 head of cattle.

But this heavy gold Mina of four marks had been seemingly twisted from its original Greek character to bring it into consistency with Roman[234] methods of reckoning. It was divided no longer into 100 staters, but now into 96 ortugs, so as to make the ortug double of the solidus and one third of the Roman ounce, thus throwing it out of gear, so to speak, with the normal tribal wergelds of 100 head of cattle. It was thus made to contain only 96 ox-units, although in actual weight its 32 Roman ounces really did contain, so long as the standard of the Roman ounce was adhered to, 100 Attic staters or ox-units.

That the light mina of two marks or 9216 wheat-grains had found its way by the Eastern trade routes into Scandinavia appears from its survival in the monetary system of countries on both sides of the Baltic to quite modern times.

In Northern Europe the pound of twelve ounces was not, as elsewhere, the usual larger unit. The pound of two marks or sixteen ounces had taken its place. And except in Norway and Denmark, which sooner or later adopted the monetary and weight system of Charlemagne, the ounce remained the Roman ounce of 576 wheat-grains. At the same time, as in the case of the Merovingian system, in spite of the Imperial influence of the gold solidus, there were evident marks of a tendency towards the ancient Eastern standard of the stater rather than the heavier standard of the double solidus. The ortug of 192 wheat-grains seems to have often sunk in actual weight below even the Attic weight to that of the ancient Eastern stater of 8·18 grammes.

Thus when the Russian weight system was recorded in the time of Peter the Great the unit both for precious metals and goods was found to be the Zolotnic or gold piece. Thus—

[235]

Here, then, in wheat grains the Funt is the light Mina Attica over again, Romanised in its divisions. The Zolotnic is the solidus or half-stater. But in actual weight the pound is exactly half of the ancient Eastern gold mina of 818 grammes.

The Pfund of Silesia (Breslau), according to Martini, was 405 grammes, and that of Poland (Cracow) the same. Only Sweden and Riga seem to have adopted or preserved higher standards, the double mark of Sweden being 425 and that of Riga 419 grammes; but even these fell far short of the standard weight of 16 Roman ounces, viz. 436 grammes. But throughout, low as the standard of the Baltic Funts or double marks may have been, they were divided according to the Roman commercial weight system into ores or ounces and loths or half-ounces, and gwentschen or drachmas of one eighth of an ounce, just as if they were of full Imperial weight. The marks and the ores remained, but the old division of ores into ortugs or staters had long ago disappeared.

The division into marks, ores, and ortugs was, however, in full force at the time of the Norse laws, both for gold and silver. And the evidence of actual weights seems to show, not only that for the purposes of the Eastern trade routes, reckoning in marks, ores, and ortugs was in common use, but also that the standard, like that of the Merovingian coinage, was the ancient Eastern standard.

Thus the following weights, believed to belong to[236] the Viking period, from the island of Gotland, are now in the Royal Museum at Stockholm (Nos. 4752 and 5984).

	819	grammes	=	100	staters or ortugs of	8·19
	57·25	”	=	7	” ”	8·1
	32·65	”	=	4	” ”	8·16
	32·4	”	=	4	” ”	8·1
	24·35	”	=	3	” ”	8·12

The unit of these weights is exactly the Eastern stater of 8·18 or two Merovingian solidi.[173]

[237]

Whether this standard had been arrived at independently of the Merovingian standard, or adopted from it, we must not stop to inquire. It is enough that the ortug at the date of the laws through Roman influence had come to be reckoned as one third of the ounce.

Whatever may have been the early Byzantine influences and that of Eastern trade routes, long before the date of the Norse laws, Scandinavia had come under Frankish influences also.

Already during Merovingian times, chiefly through the Frisian mint at Duurstede, Merovingian currency had become well known on the Baltic, and we have seen that the first Scandinavian coins were copies from those of the Duurstede type. Hence it came to pass that in the most ancient of the Norse laws the old Scandinavian reckoning in gold and silver marks, ores, and ortugs had become connected with the Frankish currency. During the period of Merovingian influence the Merovingian ounce and the Norse ore were both, reckoned in wheat-grains, the ounce of the Roman pound, whatever may have been their actual weight. The mark of eight ounces contained 4608 wheat-grains of gold or silver. But at last, as the result of Charlemagne’s conquests in the North, his nova moneta with its higher standard was brought into contact with Scandinavia. His mark of eight of his ounces or 5120 wheat-grains ultimately superseded in Norway and Denmark the old mark of eight Roman ounces. Hence, as all the Scandinavian laws as we have them, are of later date than Charlemagne’s conquests, the question must arise, which of the two marks is the[238] one in which the wergelds and other payments are described.

In the oldest Norse laws the wergelds are stated mostly in silver marks, ores, and ortugs. The ratio between gold and silver was 1:8, so that an ore of gold equalled a mark of silver, and thus the translation of silver values into gold is easy. The laws themselves, as we shall find, make this perfectly clear. A wergeld stated as of so many gold marks is divided in the details of payment into silver marks, ores, and ortugs at the ratio of 1:8.

II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAWS.

In approaching the consideration of the Scandinavian custom as to wergelds and the structure of tribal society as disclosed in the ancient laws, I do it with great diffidence, especially as, for the translation of Old Norse, I am dependent on others.

On the whole it seemed best to concentrate attention upon the Gulathingslög as the oldest of the Norse laws. The Danish and Swedish laws and the Grágás of Iceland no doubt under competent hands would yield valuable additional evidence, but the oldest of the Norse laws may probably be fairly taken as the most representative of early Northern custom, and at the same time most nearly connected with the object of this inquiry.

Geographically the Gulathing law was in force in the southern portion of Norway. It seems to have embraced, in about the year 930, three, and afterwards six, fylkis or districts each with its own thing[239] and local customs.[174] In this respect it resembled the Frisian and Saxon laws, both of which recognised, as we have seen, the separate customs of tribal divisions contained in the larger district over which the laws had force.

The Gulathing law must therefore be regarded as in some sense a compilation or collection of customs rather than one uniform law. For instance, there are three or four separate descriptions of the wergeld and the modes of its payment and receipt. One of these is avowedly of later date. The older ones may probably describe local variations of general custom, belonging to one or another of the divisions, and even these bear marks of later modification and additions.

As usual, the introduction of Christianity was the occasion and perhaps the cause of the compilation, and therefore from the time of the formation of Dioceses by King Olaf (A.D. 1066-93) ecclesiastical influence must be expected. But on the whole this Gulathing law presents in some points a far more interesting and instructive picture of social conditions resulting from tribal custom than the laws of other tribes already examined of much earlier date.

The next important of the ancient laws of Norway is the Frostathingslög belonging to the more northerly district of Drontheim. Without pretending to have made it the subject of special study, I have here and there found it useful in elucidation of the Gulathing law, and as showing that tribal custom, though with local variations, was in force over a wider district than that under the Gulathing law.

[240]

The question of the structure of tribal society and the division of classes in Norway may be most conveniently approached from the point of view of the rett or ‘personal right,’ somewhat analogous to the Irish ‘honour-price’ and the Welsh ‘saraad.’

Both in the Gulathing law and in the Frostathing law this personal ‘rett’ lies at the root of the graduated payments for insults, wounding, and homicide. And the statements of it are practically identical in the two laws. They are as follows:—

The chief difference is that the Frostathing law divides the leysings into two classes, a significant point on which important considerations turn.

The things for which full rett was paid may be described as insults. If a man were knocked down, even if he fell on his knees, or if his moustache were ‘seized with hostile hand’ (195), or if a man were called ‘a mare or bitch,’ these were insults for which full rett was to be paid (196).

The payments for inflicting serious wounds (sár) were regulated in the same gradations according to[241] rank as the rett, but were threefold in amount. These payments were made in ‘baugs’ or rings, each of twelve ores of silver.

These were the penalties paid by the person inflicting the wound—i.e. three times his own rett—and besides this he had to pay sár-bót according to the extent and character of the wound, as in other laws. He also had to pay the healing fee (185) of the injured person.

Passing from insults and wounds to homicide, throughout the Gulathing law the hauld, or odal-born man, is taken as the typical tribesman. His wergeld is described, and then the wergelds of other classes are said to vary according to the rett.

But before we consider the wergelds it must be remarked that here, as elsewhere, there is no wergeld for a murder within the family.

In clause 164 under the heading of ‘A madman’s manslaying’ is the following:[179]

[242]

In the Gulathing law the kindred within which there is no wergeld is thus the actual family, and it is in full accord with the instance in Beowulf in which the old father is represented as having to put up with the presence of a son by whose arrow another of his sons had been slain, such a crime being one which under tribal custom could not be avenged.

Turning now to the amount of the wergeld of the Gulathing law and the Frostathing law, it must again be remarked that there are in these laws varying accounts of it.

In the first place there are some avowedly of later date than others. Thus, in Frostathing VI. 1 the description of the wergeld is commenced as follows:—

[243]

Here the writer clearly refers back to the ancient Frostathing book as the authority for the ‘lawful bót,’ but on examination he seems to add certain additional bóts which the courts now include in the round amount of so many gold marks awarded by them in each case as it comes before them.

The writer takes first the case of an award of six marks of gold and describes how it is to be divided, and then the case of five marks of gold, and so on.

The division is throughout made in silver marks, ores, ortugs, and penningar. But when the items are added up, the total in silver divided at the ratio of 1:8 brings back the result as nearly as may be to the number of gold marks from which the division started. Thus in the clause describing the division of the wergeld of six marks of gold, the silver items add up to 48 marks exactly, and the division of this by 8 brings back the amount to six marks of gold. And so in the clause dividing five marks of gold, the items seem to add up to one ortug only less than 40 silver marks, and again a division by 8 brings the amount sufficiently near to five marks of gold.

In each case, however, the writer adheres to the same scheme of division. When he has 6 gold marks to divide he first assigns 18 silver marks to Bauga men (i.e. the near group of kinsmen of male descent on the paternal side only), and then he adds half as[244] much (i.e. 9 marks) to a group of Nefgildi-men[180] among whom are included, with others, kinsmen of descent through females on both paternal and maternal sides. So that these two groups of Bauga men and Nefgildi get 27 marks. In all cases he makes the group of Nefgildi receive only half the amount received by the Bauga group, the whole amount being reduced according to the number of gold marks to be divided. After the amount allowed to these two groups, the remainder is made up of additional payments some of which he expressly declares were not included under old law. Thus (in clause 6) he adds an amount which he says was ‘not found in the old Frostathing book’ and justifies it by saying that there would be danger to the slayer if it was not paid. And so again (in clause 9), there are additions for half-brothers, half-brothers’ sons, &c., of the same mother. And these additions are included in the six marks of gold ‘according to new law.’

Evidently, therefore, we must not take these wergelds of six and five marks of gold with their divisions as representing the ancient customary wergelds of this class or that in the social scale, but rather as showing the extent to which the system of wergelds had become somewhat arbitrarily expanded and elastic in later times. The total amount with additions was apparently increasing as time went on.

As in the Frostathing law so also in the Gulathing[245] law (clause 316, p. 104) there is a statement of wergeld, avowedly of a late date and added under the name of Biarne Marðarson, who lived about A.D. 1223. And this, too, seems to belong to a time when the amount of the wergeld was awarded by some public authority in so many marks of gold. He takes the case of a wergeld of six marks of gold and shows how it ought to be divided; and then the case of a wergeld of five marks of gold and shows how that should be divided—‘What each shall take of five marks of gold’ and so on—just as was done by the writer in the Frostathing law.

One might have supposed from this that, as the method of awarding fixed amounts and the amounts to be divided in gold marks were the same, so the groups and the persons included in them would have corresponded also. But they differ considerably.

Biarne Marðarson up to a certain point follows the same scheme as the writer in the Frostathing.

In his division of six marks of gold he, too, draws a line at the amount of 27 marks, and he also divides this amount into thirds and gives two thirds to one group and one third to the other. The son of the slain and the brother of the slain form the first group and take 18 marks, and a second group take 9 marks, the two together taking 27 marks.

The group who together take 9 marks, like the Nefgildi-men of the Frostathing, embraces however by no means the same relatives as are included in the latter. The only persons included are the father’s brother and his children, i.e. first cousins or brœðrungs of the slain, but among them are included the sons of concubines and of female first cousins. And after[246] the mention of these is the statement, ‘All that these men take amounts to 27 marks and 2 aurar.’ Out of the remainder of the 6 gold marks or 48 silver marks other relations take to the ‘fifth man’ on the male line and the sixth on the female line.

Biarne Marðarson seems, like the writer in the Frostathing law, to have had to some extent a free hand in the division. It is clear that there was much variety in the course adopted. Nor does he seem to have been by any means so systematic and accurate as the other writer. The silver amounts, when added up, do not so accurately correspond with the six gold marks to be divided.

We turn, then, from these later statements to what seems likely to be an older statement of the Norse wergeld, viz. that which commences at clause 218 of the Gulathing law.

It describes the division of the wergeld of a ‘hauld’ or ‘odal-born’ man, and it begins with the explanation that the ‘mannsgiöld’ or wergeld decreases and increases from this as other retts.

It describes the various amounts both in silver marks and in cows, which the other statements do not, and this, so far as it goes, is a sign of antiquity.

In clause 223 is inserted a statement of the various things in which wergelds may be paid. The only item the value of which is given is the cow, which is to be taken at 2½ ores if not older than eight winters and if it be ‘whole as to horns and tail, eyes and teats, and in all its legs.’ And this silver value of the cow—2½ ores—is the one used in this older description of the wergeld.

The wergeld according to this statement consists[247] of bauga payments and upnám payments. The first are received in three baugs or rings thus:—

After this statement is the declaration, ‘Now all the baugs are counted.’

A clause is here interpolated changing the point of view so as to show how, and by whom on the slayer’s side the same three baugs were paid.

Then follows the declaration, ‘Now the baugs are separated’ (‘Nú ero baugar skildir’).

[248]

It seems clear, then, that the slayer was in the last resort responsible for the whole of these baug payments, as it was the son of the slain who would take any part of them lapsing through failure of the designated recipients.

The small payments to the mother, daughter, sister, and wife included in the baug payments are evidently additional and exceptional payments in regard to close sympathy. The slayer does not make these payments. It is expressly stated that they are made ‘by the kinswomen of the slayer,’ but they are included in the even amount of 20 marks or 64 cows.

The recipients of the three baugs, it will be seen, were limited to the nearest relatives on the paternal side—fathers, sons, brothers, and first cousins—with no descent through females, while the recipients in the next set of groups or ‘upnáms’ include also relations through females: but, again, only males receive.

There is, however, one exception. In clause 231 is the following:—

Evidently they partake, as under Cymric custom, only in respect of possible sons who if born would partake themselves. Indeed, the sons only appear in the list of receivers and in no case the mother, except among the women’s gifts included as above in the baug payments.

[249]

Clause 224 describes the upnám set of recipients as under. It will be seen that they include descendants of great-grandparents, but no more distant relations.

Then follows the declaration, ‘Now all the upnám men are counted.’

If we add up the amount of the two sets of payments the result will be as follows:—

[250]

As in the Frostathing law the nefgildi-men took as a group an amount equal to one half the amount of the bauga group, so here the upnám men do the same. Evidently this is the intention.

Now if we may take the bauga payments and the upnám payments as representing in intention 30 silver marks or 96 cows, then, at a ratio of 1:8, the 30 silver marks equalled, in wheat-grains, exactly 200 Merovingian gold solidi.[181] And this may have been the ancient wergeld of the hauld.

There is, however, in clause 235 a further payment mentioned extending ‘to the fifteenth degree of kinship’ and amounting to about 1 mark and 3 ores. Possibly (though I hardly think it likely) this formed a part of the original wergeld, and if it be added, it would increase the wergeld to 31 marks, 5 ores, and at 2½ ores to the cow the wergeld would be increased to 101⅕ cows. If we might take this as roughly aiming at the round number of 32 marks and 100 cows, the wergeld of the hauld would be, at the ratio of 1:8, four gold marks or 100 cows: i.e. in actual weight the heavy gold mina of 32 Roman ounces, which under Greek usage was divided into 100 staters or ox-units. The confusion between 96 and 100 cows is so likely a result of the application of Roman methods to the division of the mina that we need not regard it. That the one or the other of these amounts may have been the original wergeld of the hauld representing originally 100 cows is consistent at least with widely spread tribal usage.

This view is confirmed by the fact that the[251] further payments mentioned in the Gulathing are distinctly abnormal ones, and so presumably added at a later date like those mentioned in the Frostathing law.

We are justified in so considering them, because in the laws themselves the persons to whom they were made are expressly called Sak-aukar, or ‘additional persons in the sak or suit.’ And when we examine them further we find that they were hardly likely to have been included among the original recipients of the wergeld.

Among those of clause 236 are the thrallborn brother and thrallborn son of the slain, and the half-brother by the same mother; and clause 239 extends the number to the son-in-law, brother-in-law, stepfather, stepson, oath brothers, and foster brothers. Evidently in these exceptional cases the rules of strict blood relationship have been broken away from, and additions have been made to the normal wergeld to stay the vengeance of persons sufficiently nearly connected in other ways to make them dangerous if left unappeased.

It was probably these additional payments, added from time to time in contravention of the strict rules of blood relationship, which caused the uncertainty of the later laws, and led to the new system of awarding a round number of gold marks as the total wergeld, included in which were additions intended to meet the introduction of half-blood and foster relations and others the risk of whose vengeance it seemed needful apparently in later times to buy off.

Returning, then, to the original wergeld of the hauld without these additions, we have seen that it consisted of two sets of payments, bauga payments[252] and upnám payments, and possibly the small addition of those of more distant relations.

Now in the Gulathing law there are two other descriptions of the amount of the bauga payment, and it will be useful to examine them.

The first is to be found in clauses 179 and 180.

In clause 179 the payment for cutting off a hand or foot and for striking out an eye is said to be a half ‘giöld,’ and it is added:—

And then in the next clause, under the heading ‘About Giöld,’ is the following:—

Now it would seem that this payment for the death of a hauld was not the whole wergeld but only the bauga part of it. No details even of the bauga payments of eighteen marks are given in this clause. It seems to be inserted in this place simply with reference to the full limit of payments for injuries. Liability for wounding, under Cymric custom, was confined to the kinsmen of the gwely, and so it may well be that under Norse custom it was confined to the bauga group.

But the amount in this clause is only eighteen marks, while that of the bauga payments of the wergeld we have just been considering, as probably[253] the earlier one, was twenty marks. How is this to be accounted for? The answer surely must be that eighteen marks of Charlemagne, reckoned in wheat-grains, were exactly equal to twenty of the Roman or Merovingian marks of the earlier period.

The other statement alluded to is also a statement avowedly of the bauga payments, and begins with almost the same words, ‘Now the giöld for the hauld shall be told.’ In this case the details are given and the detailed payments add up between eighteen and nineteen marks, and yet the total is given as a little more than twenty marks.

This statement differs from the older one in its divisions, but it has an air of antiquity and reality about it which suggests that it may represent a local custom actually in force. Little touches of picturesque detail seem to bring it into contact with actual life, and to show how local custom might work out a common object by its own peculiar method.

It meets us abruptly in clause 243 under the heading ‘On baugar,’ and commences thus:—

It then introduces quite another element, viz. the tryggva-kaup (truce-buying).

In the next clause it is explained that this ‘peace-price’ (sættar-kaup) is paid when the kinsmen come[254] together to make peace, and that three marks are also paid as skógar-kaup—‘forest price,’ i.e. payment to release the slayer from being a skógar-maðr, or outlaw living in the forest.

The slayer pays a baug to the son of the dead, and two truce-prices, one to the brother and the other to the ‘brœðrung’ of the dead. And the slayer’s brother pays a baug to the brother of the slain and again two truce-prices, one to the son of the slain and the other to the brœðrung of the slain. And the brœðrung of the slayer pays a baug to the brœðrung of the slain and again two ‘truce-prices,’ one to the son and the other to the brother of the slain. All this is for peace-buying (sættar-kaup) when the kinsmen are met together to make peace.

Then, in clause 245, the women’s gifts are described. The slayer, his mother, his daughter, and his wife each give a gift of 1⅕ ore to the wife, mother, and daughter of the slain—making twelve gifts. The sister of the slayer gives a half gift to the sister, wife, daughter, and mother of the slain (two gifts), and the slayer, his mother, wife, and daughter, each give a half gift to the sister of the slain, making the number of women’s gifts sixteen in all.

The amounts thus stated add up as follows:—

The amount aimed at seems to be 18 marks (the upnám payments being 9 marks), and yet the total is stated as follows:—

[255]

Absolute accuracy need not be expected, but there must be a reason for the difference between eighteen and twenty marks—between the detailed payments and the total—and it is difficult to suggest any other than the one already mentioned.

The total amount of the bauga payments seems to be the same in this as in the other statement, but a new element is introduced with an obvious and interesting object.

The bauga-men, as before, consist of three groups. The slayer pays the baug to the son of the slain and appeases the other two groups by payment to each of them of a truce-price, so that to all the three bauga groups of the relations of the slain he has acknowledged his wrong and desire to make composition. And so in each case the representative of the other two groups of slayer’s relations pay the baug to the corresponding group of the relatives of the slain and a truce-price to the other two, so that no relation of the slain could after this point to any individual as not having joined in the payment to himself or his group.

The women most deeply concerned on both sides are also present at the gathering. And each of those connected with the slayer is prepared with her gift of 1⅕ ore for the corresponding relative of the person slain.

Women’s gifts were included in the bauga payments in the other statement also.

The clauses relating to the bauga payments are followed by three others, headed ‘On saker,’ and the[256] further recipients of wergeld, as before, seem to be divided into upnáms and sakaukar, but in this case there is a strange mixture of the two. The mother’s brother and the sister’s son are excluded from the upnáms to make way for the half-brother by the same mother of the thrallborn son.

Clause 246, ‘On saker,’ gives twelve ores to each of the following, who in clause 250 are called upnám men.

So that the bauga and upnám payments—two thirds and one third—added together once more make a normal wergeld of twenty-seven marks, that is, thirty of the Merovingian standard.

Then clause 247, ‘Further on saker,’ gives to—

And in clause 248 ‘further on saker,’ a thrallborn father’s brother and a thrallborn daughter’s son by a kinborn father, take each a mark.

The traditional wergeld seems, therefore, once more to be 27 marks of Charlemagne or 30 Merovingian marks, and the additional payments appear to be sakaukar. But the upnám group in this case includes the brother by the same mother and the thrallborn son, leaving outside as sakaukar the[257] mother’s brother and the sister’s son and the father’s sister’s son along with the thrallborn brother.

It is not within the scope of this inquiry to attempt either to explain, or to explain away as of no moment, the variations in the persons included under the various schemes in the groups of bauga and nefgildi or upnám men. Even such a question as that of the exclusion from the upnám group of the mother’s brother and the sister’s son, to make way for the illegitimate half-brother and thrallborn son, is not necessarily to be disposed of as a later alteration in favour of those of illegitimate birth. For the Cymric precedent might well lead us to an opposite conclusion, inasmuch as in the laws of Howell, in spite of strong ecclesiastical opposition, the ancient pagan custom of admitting illegitimate sons to share in the father’s inheritance was defended and retained as too fully established to be given up.[182] Looked at from the point of view of the feud, they were naturally more on the spot and therefore of much more moment than the mother’s brother or the sister’s son.

Professor Vinogradoff[183] has suggested that the evidence of Norse and Icelandic wergelds seems to point to an original organised group of agnates who were bauga men and formed the kernel of the kindred[258] liable for wergeld as contrasted with after additions of relations on both paternal and maternal sides and others more or less nearly concerned. The Cymric precedent would lead us to expect to find thrallborn sons as well as legitimate sons among the bauga men without any special mention as such. Under Christian influences they may have been excluded from this group to find a place ultimately, sometimes with special mention, in the upnám group.

It may or may not have been so, according to the stage of moral growth arrived at in the particular case of this tribe or that, at the particular period in question. Hence, although under Norse custom the amount of the normal wergeld of the hauld may have been constant, the way in which it was divided and the group responsible for its payment may well have varied from time to time and in different districts.

It has already been noticed that even under the later methods of awarding as wergeld an even number of gold marks, both the Gulathing and the Frostathing laws, in the case of the award of 6 marks of gold, draw a line, the one at 18 and 27 marks and the other at 20 and 30 marks, as though these amounts had a strong traditional sanction. Even in the case of the lower awards the scheme of division being the same with proportionately lessened figures, this portion of the wergeld was always divided into two thirds of bauga payments and one third of nefgildi or upnám payments. This seems to be strong evidence that, although the persons forming the groups may have differed, the two groups formed[259] originally an inner and an outer kernel of the wergeld proper, the additions to which may fairly be regarded as sakaukar.

The repetition of evidence in both laws that the bauga payment of two thirds was followed by another third of nefgildi or upnám payments, when connected with the further fact that the two together made an amount which was, at the value of the cow stated in the laws, equated with 96 or 100 cows, seems to confirm the hypothesis that in this amount we have the normal wergeld of the hauld. To Professor Vinogradoff’s suggestion that the bauga payments may have formed an original inner kernel of the wergeld we may therefore perhaps add that the nefgildi and upnám payments may have formed an outer shell of the kernel, and that both may have been included in the original normal wergeld of 96 or 100 cows.

Finally, if this may fairly be taken to be the wergeld of the hauld, then, recurring to the repeated statement in the Gulathing law that the wergeld of the hauld being told, the wergelds of others ‘varied according to the rett,’ the wergelds of the several classes in Norse social rank may, it would seem, with fair probability be stated as follows:—

[260]

The significance of these gradations in the retts and wergelds of Norse tribal society will become apparent in our next section.

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

We are now able to devote attention to the interesting question of the gradations in social rank under Norse tribal custom. And we are fortunate to have the guidance of Dr. Konrad von Maurer’s valuable paper written in 1878 and entitled ‘Die Freigelassenen nach altnorwegischem Rechte.’

Although tribal custom, viewed as we view it after the acceptance of Christianity, may not be altogether what it was originally in its actual working, yet still it is worth while to seek for the principles underlying the separating lines between social conditions as revealed in the laws. So far as they can be discovered, they are sure to be instructive, for they cannot have been the result of the sudden change in religion. Their roots at any rate go far back into tribal custom, however much, as in other cases, the Church may have adopted and modified what it could not eradicate.

The hard lines of distinction between social classes were kept up even in the churchyard.

Referring to the gradations of rett, it will be seen that there are apparently two classes of leysings, whose social condition was next above the thrall at the bottom of the ladder.

This was first made clear by Konrad von Maurer. The thrall who by purchase or by gift had been made a ‘freedman’ (frials-giafi) had only taken the first step towards even that limited amount of freedom which belonged to the leysing. Another step had to be made good before he became a full leysing. And the step was accomplished by the ceremony of ‘making his freedom ale.’

The leysing before ‘making his freedom ale’ was still so far the property of his master that his children did not inherit his goods. They belonged to his master.

This passage shows that the link of blood-relationship between two brothers and foster brothers, by reason of their being fostered together, in the case of thralls was recognised before that between parent and child. It was the fosterage in this case which had forged the link. Blood-relationship in thraldom counted for nothing.

The ceremony of ‘making a freedom ale’ is thus described, in the two laws.

A master might dispense with this formality. He might take his thrall to church, or ‘seat him on the kist,’ and if then he proceeded formally to ‘free him from all debts and dues’ the leysing need not ‘make his freedom ale.’ (G. 61.)

Now let us see what change in social position and rights the ceremony of ‘making freedom ale’ or its substitute produced.

The leysing was still unfree in the sense that he could not leave his master. The following is from the Gulathing law (67).

But, on the other side, the master might not sell even a thrall ‘out of the land’ (F. XI. 20); so that probably he could not turn his leysing adrift at his pleasure.

[264]

The leysing remained under thyrmsl towards his master, or obligations involving personal loyalty and duty, and upon any breach of these, he could be put back into thraldom.

The reason assigned in a clause above quoted for the desire to ‘make freedom ale’ was that the leysing might ‘have control of his bargains and his marriage.’ He gained, therefore, both as regards property and also in family rights.

In Gulathing law (63) is described what happened on his marriage. If he marries a kin-born (ætt-borin) woman, and they afterwards separate, all the children go with her. He, not being kin-born, has no kindred. She being kin-born, her kindred have rights over her and obligations as to her children.

If one leysing marries another, and both father and mother have made their freedom ale, the children of the marriage inherit from both. This is the beginning of the rights to inherit. But it is accompanied by the obligation to keep the children, who[265] are no longer thralls of the master but leysings like their parents.

What happens, then, if the parents fall into poverty and cannot keep their children? Is the master to keep them or are they to starve?

But it is not all leysing families which come to this gruesome pass. It may be presumed that the leysing who had ‘made his freedom ale’ and married and could make his own bargains and keep what property he and his wife could accumulate was mostly prosperous.

In clause 106 the rules as to ‘leysing inheritance’ are described. If the leysing who ‘made his freedom ale’ afterwards had children they could inherit. But he had no other kin who could inherit: so if he died childless the master took the property. As generation after generation passed and a wider kindred was formed, any one of his (the leysing’s) kin took in preference to the master and his descendants. But the rights or chances of inheritance on the side of the master’s family did not cease for nine generations from the first leysing who had ‘made his freedom ale.’ So that if a leysing even of the eighth[266] generation died without kin the inheritance in this extreme case went to the descendants of the master of the first leysing ‘to the ninth knee’ rather than pass by failure of kin to the king.

Thus we seem to see the family of the leysing who had ‘made his freedom ale’ gradually growing up into a kindred in successive stages until in the ninth generation a kindred of leysings had been fully formed and might be very numerous.

In the corresponding clause in the Frostathing law (IX. 11) further details are mentioned. If not previously purchased by agreement with the master, the ‘thyrmsl’ came to an end after four generations: that is, the fifth generation was free from them. They lasted, therefore, over the first four generations from the original leysing to his great-grandchildren. For these four generations the leysing and his descendants were the leysings of the master and his descendants.

Then the clause goes on to show that the first leysing having ‘made his freedom ale’ shall take[267] inheritance only of his son and daughter, and of his own freedman. The sons of this leysing take inheritance from six persons, viz. father, mother, sons, daughters, brothers, sisters, and, seventhly, from any freedman of their own.

Failing these leysing claimants, the inheritance rights revert to the master to the ninth knee, and, it is added, ‘also providing for these if needed.’

There is here something very much like the Cymric gwely or family of descendants of a great-grandfather with rights of maintenance under the rules of ‘tir gwelyauc’ and mutual liability. Until a kindred has been formed the master’s obligation to provide for the leysing remains, and it does not cease altogether until the kindred is complete. In the meantime as the kindred is formed its members are mutually liable for each other’s maintenance. In this respect within the group of descendants of a great-grandfather there is solidarity for maintenance as well as wergeld.

We are dealing evidently here with a family of leysings growing into a kindred, as under Cymric custom the family of the Aillt and Alltud grew into a kindred. During all these four generations the family were leysings with a rett of six ores. But the fifth generation seems to rise into a second grade of social rank and to attain the rank of ‘leysings’[268] sons’ with a rett of eight ores. And further in another four generations, those of the ninth generation again rise in social rank and seem to become árborinn or ættborinn men, i.e. men born in a kindred, with a rett of sixteen ores. They can now boast of a full leysing kindred. Their father, grandfather, and great-grandfather were born in a kindred, and they have now full rights of inheritance. The master and his descendants have no further hold on them or obligation for their maintenance. Any lapsed inheritance now goes direct to the king.

The árborinn or ættborinn man, therefore, seems at last, at the moment when a full kindred of his own has risen up to swear for him and protect him by feud or wergeld, to have become clear from any claims on the master’s side. And accordingly if any claim be set up he has to prove his freedom by witnesses ‘that he can count four of his forefathers as árborinn men and himself the fifth.’ That is, he shows that his great-grandfather was a man with an ætt or kindred. If he can prove this he is free from any claim in regard to his leysing descent.

So far the conclusions drawn from the laws respecting the leysing do not vary much from the views expounded by Dr. Konrad von Maurer in his ‘Die Freigelassenen nach altnorwegischem Rechte,’ and confirmed by so great an authority they can hardly have wandered very far from the truth.

The theory of this gradual growth of the kindred of the leysing is so nearly analogous to that of the Cymric alltud, and the Irish fuidhir, and at the same time so logical, when the tribal theory of blood-relationship is applied to it, that we cannot be dealing with the fanciful theory of legal enthusiasts which never had an actual place in practical life. Behind all this imperfect description, in the laws, of social conditions and landholding there was, no doubt, a reality, the features of which may be difficult to grasp from our modern point of view, but which become, I think, fairly intelligible when approached from a tribal point of view.

When we consider that in the course of the successive generations, during which some kind of shadowy lordship seems to have prevailed over the family of leysings, they must generally have multiplied into considerable numbers, and that the descendants of the master of the leysing ‘who made freedom ale’ must during the same period also have multiplied; and further when we consider that the descendants[270] of the leysing were in some sense, it would seem, adscripti glebæ, we have to recognise not merely a relation between individuals but something approaching to a relation between two classes, tribesmen and non-tribesmen, the one in some sense in a kind of servitude to the other. In other words, we have to conceive of a kindred of half-free tenants, living under the joint shadowy lordship of a kindred of fully-free men, probably in some tribal sense landowners, with complicated tribal rights among themselves.

It would seem that this semi-subject class of leysings were mostly the descendants of a class of thralls, it may be perhaps in origin some conquered race, members of which had gradually grown into leysings and were now gradually in successive stages growing into freemen.

Before we can fully understand this process we must examine the other side of the question and learn what was the position of the fully-free class by whom this more or less shadowy lordship over the leysing class was exercised. In the meantime it may be remarked that the shadowy lordship of one class or tribe over another finds parallels enough in Indian experience, and that, coming nearer home, we have only to remember the petty exactions of the cadets of French noble families upon a peasantry over whom their family, or the feudal head of it, held a quasi-manorial lordship.

[271]

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

Following again the clue of the statements of the ‘personal right’ of the different classes, and commencing with the bónde or ordinary freeman settled upon land and presumably having in some sense, as in Wales, originally tribal rights to share in the land or its use, the next class which claims attention above the bónde is the odalman or odalborn man or hauld, whose wergeld of 96 or 100 cows was taken as that of the full and typical freeman.

Now, in the Frostathing law there is a statement as follows:—

And again in the Gulathing law is the following:—

The odalborn man inherits land from his grandfather’s grandfather. The son of an odalman who claims odal as odal by inheritance counts four or five forefathers who had the land before him.

In Gulathing law c. 266 is a description of the mode of settling a claim as to land. It describes the sitting of the open-air court, from which both bauggildsmen and nefgildsmen and relations by marriage of the claimant are excluded as ineligible, the calling of witnesses all to be odalborn men of the[272] same fylki as that in which the land lies, and so on. The validity of the claim is made to rest according to this statement upon the ability to count up five forefathers who have possessed that land, while the sixth possessed it both by ownership and by odal.

If, then, at the time of the laws we look at the class of landowners who were prominent as odalmen or haulds—typical men with wergelds originally of 100 cows—they were not only men of full kindred whose full pedigree of freedom went back the necessary nine generations, but their grandfather’s grandfather must have possessed the land. The sixth generation of owners were the first to hold land both in ownership and odal.

The steps in the rank of Norse aristocracy were marked, therefore, as in the case of the more dependent class, by the number of the generations of ancestors through whom they could claim their landed rights.

Nor in the case of the odalborn man any more than in the case of the leysing must we look upon the odalman or hauld merely as a detached individual landowner owning his own separate estate like a modern country squire. Such a conception would be far indeed from the truth. It must be remembered that holdings in odal were subject to rules of division. Moreover, indications appear in the laws that the division was not merely one between[273] the heirs of a single holder, but something more like what took place between the group of kinsmen in the case of the Cymric gwely and ‘tir gueliauc.’ How otherwise can this clause be read?

At the time of the laws owners of odal had, it appears, certain powers of selling their odal, but even then it was not an uncontrolled right of a man to do what he would with his own. His first act must be to ‘go to the “thing” in autumn and offer it to his odal-sharers’ (odalsnautr, one who has odal-right to land in common with others). (G. 276.)

If a man buys without its having been thus offered, then ‘the odal-sharers may break that bargain’ (G. 277). Even when the sale and purchase have been made by the public ceremony of skeyting, i.e. by taking earth from the four corners of the hearth and from under the ‘high seat,’ and where field and meadow meet, and with witnesses at the ‘thing’ (G. 292), the odal-sharers of the seller have the right to redeem it within a twelvemonth (G. 278).

Take, again, the case of two brothers dividing odal, and observe how careful law and custom had been to prevent either of the odal-shares going out of the family. The odal rights between them were maintained for as many generations as must pass[274] before the shares could be united again by a lawful marriage between a son of one family and a daughter of the other (G. 282). One is tempted to say that here again there may be something very much like the Cymric gwely and to suppose that marriage was forbidden within the gwely, e.g. between second cousins, and that the odal sharing continued so long as the gwely held together.

If the family of one of the brothers sinks into utter poverty or is left without a legal heir, the other family have the right of redemption and occupancy; and yet the poverty-stricken or heirless branch does not lose its rights to the odal altogether. There is still the chance that its rights may be restored when a son on each side can marry a daughter of the other side.

There is a further clause in the Gulathing law which provides that when land falls to a woman the men of the kindred, ‘if their relationship be so close as to be nefgildi or bauggildi’—that is, as we have seen, paternal and maternal relations descendants of great-grandparents—have a right to redeem it from[275] their kinswoman at one-fifth less than its value, ‘paying one half in gold and silver and the rest in thralls and cattle.’ The men then keep the odal and their kinswoman ‘keeps the aurar.’ Even if odal has passed ‘three times under the spindle’ it comes back at last to the male kinsmen (275).

Now when these remarkable survivals of tribal custom are found still remaining in the laws as to odal and odal-sharers and the right of kinsmen who would have to pay wergeld to redeem odal, so that it may be kept within the ring of odal-sharers, they cannot[276] be regarded as laws framed to meet the needs of individual landownership. They come down in the laws as survivals of family ownership under tribal custom, the principles of which are by no means wholly obsolete, even though society may have passed onwards some stages towards individual landownership of the more modern type.

And when we consider the solidarity of kindreds, as regards the payment of wergelds on the one hand, and the corresponding solidarity in the matter of landownership on the other hand, we can hardly fail to recognise that the two are connected—that both spring from a tribal principle which lies at the root of tribal polity. The solidarity of kindreds, taken together with the liability of individuals to take their share in the payments for which their kindred is responsible, corresponds to the solidarity of odal landholding, taken together with the individual rights of the odal-sharers. Unless every one in a kindred had his recognised tribal rights on the land, unless he were possessed of cattle and rights of grazing for their maintenance, how could he pay his quota of cattle to the hauld’s wergeld of 100 cows? The two things seem to hang together as in the Cymric instance, and the one makes the other possible.

V. THE LEX SCANIA ANTIQUA.

The ‘Lex Scania Antiqua’ might perhaps be selected as fairly typical of Danish[185] ancient custom,[277] as the Gulathing has been taken as typical of Norse custom. But apart from this it contains some chapters which seem to throw further light on odal and family holding, and so can hardly be overlooked in this inquiry.

There are two versions of the Scanian Law, one in Latin and the other in old Danish. They differ considerably and are certainly not translations one of the other, though an older text may have been the foundation of them both.

They both refer to recently made modifications of local custom which fix their date to the early years of the thirteenth century.

The author of the Latin text was the Archbishop of Lund (A.D. 1206-1215), and from the use made by him of legal terms borrowed more or less from Roman law it may be gathered that Scanian custom required for him more explanation than the Danish writer deemed it necessary to give.[186]

The rules with regard to wergelds cannot be quoted as representing unmodified ancient custom. They avowedly are the result of modifications made to remedy evils which had arisen partly, no doubt, from the gradual loosening of the ties of kindred.

In the same way the clauses as to property represent the results of long-continued conflict between ancient rules of family holding and gradual[278] innovations in the direction of individual ownership. In this they resemble the Lex Salica. Still if family holdings more or less on the lines of the Cymric gwely, or the Salic alod, had once been the prevalent form of occupation, even new rules making alterations could hardly fail to reveal traces of older custom. The special value to this inquiry of the ‘Lex Scania antiqua’ is that it does so.

Disguised as some of these traces may be in the Latin text, under Roman phraseology, with the Danish version at hand it ought not to be difficult to recognise the meaning of the facts disclosed.

The first chapter relates to the rights of a wife surviving her husband when there are no children of the marriage.

This clause may very possibly represent an extension of the rights of a childless widow beyond what tribal custom may have originally given her. But certainly the fact that under Scanian law the childless widow was entitled to half of what by compact at the time of the marriage had become the joint property of husband and wife, while the other half went to the husband’s next heirs, is good evidence[279] that marriage was by no means a surrender of the wife and her property once for all into the power of the husband and his family. And evidence of the accord of Scandinavian with other tribal custom on this point is not without value.

It may be observed, however, that in the case mentioned there had been something like a compact or valuation of the property brought under the marriage arrangement at the time of the marriage. The result might therefore have been different if no special compact had been made. The inference might well be that the childless widow in that case would not have been allowed to take her half share with her away from her husband’s kindred.

Chapter III. refers again to a wife’s property and adds important information. It brings before us a family group with something like a family holding. And it becomes intelligible only, I think, when approached from this point of view.

Into this family group a wife has been brought apparently without the special ‘definition’ or arrangement. There are also children of the marriage. And the question asked in the heading of the Latin text is, what shares the grandchildren take on their father’s death, not in their parent’s property, but in the property of the grandfather.

The grandfather is the head of the family group. In the Latin version he is elsewhere styled the paterfamilias and in this clause his sons are filiifamilias.

In the Danish version the family group is simply that of an ordinary bonde and the family character of the holding is taken for granted as not needing special mention or explanation.

[280]

The chapter is as follows (divided into sections for convenience in comparison of the Latin and Danish texts):—

The Danish text (I. 5) is as follows:—

[281]

This clause, in both the Latin and the Danish version, confirms the inference from the previous one, that there was a difference of destination as to the property of husband and wife according to whether it had or had not been ‘defined’ and so put in partnership as joint property of the husband and wife separately from the property of the family group represented by the grandfather.

If not so defined, it became apparently under ancient custom part of the common family property and so divisible after the grandfather’s death among all the consortes instead of going solely to the children of the marriage.

The clause pictures for us the family group as bound together by paternal rites (sacris paternis). The grandfather is alive and is the paterfamilias. A son who is a filiusfamilias (i.e., as we shall see presently, not an emancipated son) has married and brought into the mansio, or family homestead of the grandfather, property which he had with his wife.[282] This, not having been ‘defined’ on marriage, so as to keep it separate, has become, in the phrase of the Latin text, ‘added to the property of the grandfather.’ The husband has died leaving several sons, it matters not how many. The question is, what share these grandsons are to take in the property which their father had with their mother, which, for want of ‘definition,’ has become added to the grandfather’s property, or, in other words, become part of the ‘substantia communis.’

The answer is that the parents’ property does not go exclusively to their children as it would have done if it had been defined and separate property. It has become merged in the family property, and there is no sharing of this till the grandfather’s death. But apparently by a compromise, due probably to recent legislation, they are allowed on their father’s death, according to the Latin text, to take equal shares in his property per capita ‘with the grandfather and other consortes,’ or, according to the Danish text, a ‘full lot’ in it. We are not told who were the ‘consortes’ with whom and the grandfather it was to be shared. The consortes, whether uncles or cousins or both, were the co-sharers in the ‘communis substantia’ of the family holding.

In the final paragraph of the clause both texts give the alternative rule applying to cases, probably the most frequent, in which proper ‘definition’ of the wife’s property had been made on the marriage. And the rule is stated to be that the property so defined and made joint or partnership property on the marriage, and that alone (illa sola), would go to the children of the marriage at their father’s death[283] during the life of the grandfather. According to the Latin text, they were excluded from the other family property ‘by the prior grade.’ As the Danish version puts it: ‘not a whit of the other property would they get except what the grandfather chose to give them.’

That this is the true meaning of these clauses is confirmed by other chapters.

Chapter XVI. is headed: ‘How much may be conferred by a father upon the sons of a deceased son during the lives of the other sons, their uncles.’ The text is as follows:—

This seems to be a special permission to the grandfather during his life to mitigate the injustice of the customary rule excluding grandchildren from succession by representation in their deceased parent’s property.

If under Scanian custom the children of a dead filiusfamilias had succeeded by right to their father’s property, this special permission would not have been needed. But it seems to be clear that no such right of succession was recognised by ancient custom.

Chapter XI. opens with the following general statement, there being in this case no question of a marriage or a wife’s property.

[284]

This seems to make it clear that, the grandfather being alive, the grandchildren took by right under ancient custom no share in their deceased father’s property. It was simply merged in the family holding, and they must wait for their shares in it along with the other co-sharers after the grandfather’s death.

The growing feeling of the injustice of this from the individual point of view was probably the reason, not only why the permission in Chapter XVI. was given, but also why, following the example of Roman law, the emancipation of sons was admitted.

Chapter XI. proceeds, after the initial sentence above quoted, to tell what happened in the case of the death of an emancipated son dying without children. But this does not concern us.

It may be well before passing from the consideration of these clauses of the Scanian law to bring into notice a short isolated clause from the Gulathing law, which seems to accord with them, and so to connect the Scanian rules of family holdings with somewhat similar rules as to the Norse odal-sharing. The denial of the right of representation in both Scanian and Norse ancient custom suggests that a common principle may underlie the custom in both cases.

The clause of the Gulathing law (294) is as follows:—

In this case, as before, there are living a grandfather and a son and a grandson (son of a deceased son). The share which the deceased son as coheir with his brother might at first sight be expected to take in the grandfather’s odal does not go directly to the grandson. By apparently a new law he has permission after the grandfather’s death to redeem it from his uncle at one fifth less than its value.

This can only be explained upon the principle that under ancient Norse custom the sons of a deceased son would not succeed by right of representation to their deceased father’s share in the division of the grandfather’s property. Evidently the right to redeem it from their uncle was an innovation of later law.[190]

These and other innovations may have been the result of a new sense of justice brought in with Christianity or under the influence of Roman law. The question for us is the meaning of the ancient custom. And we are brought back to the point that in so far as the family group more or less may have resembled the Cymric gwely, and is approached from this point of view, it must be regarded as the group of descendants of a common grandfather or great-grandfather, who is, in the Archbishop’s phrase, the paterfamilias. While he is alive the landed rights are vested in him. On his death his sons take his place with divided or[286] undivided equal shares, but still as the representative members of the original gwely or family group. One of them dies, and the question is whether the surviving brothers ‘of the prior grade’ are to promote into this grade at once the sons of their deceased brother. Such a course might naturally be regarded as preferring these nephews to their own sons. The rights of all the members of the ‘lower grade’ will come in time when all of the ‘prior grade’ are gone and the grandsons share equally per capita in the family property. In the meantime the sons of deceased parents, like those whose fathers are alive, must wait. So it may have been under ancient custom. But in course of time family ties weaken and individual rights grow stronger in national feeling, as we have seen them everywhere doing. And then little by little compromises are made. The joint property of husband and wife, even if not properly ‘defined,’ is recognised in the Scanian law as belonging to the sons of the marriage to the very limited extent that they may have equal shares with the other consortes whether uncles or cousins. The sons of the deceased brother when the grandfather is dead and division among the brothers comes in question are allowed by the clause in the Gulathing law to buy back their father’s share in the odal at a fifth less than its value instead of sharing in it as family property.

So far the clauses in the Scanian and Gulathing laws considered together seem to throw light upon the traditional principle on which the rights of the odal-sharers of the Norse laws may have been founded.

The rules of Cymric custom may not be identical with those of Scandinavian custom, but we seem to[287] recognise very similar tribal principles at the root of them both.

Finally other clauses in the Scanian law may be alluded to as pointing to the common liability of the family group, i.e. of the paterfamilias and others ‘in communione’ with him.

Chapter IX. is as follows:—

And in Chapter LXXXVII. it is enacted that if a person denies that he is in possession of a thing stolen and if afterwards upon scrutiny it is found in his house, double the value of the thing stolen is to be taken, ‘not only from the portion of the paterfamilias, but also from the common property (de bonis communibus), however many there may be with the paterfamilias in communione.’

And the reason stated confirms the prevalence of family holdings of the kind already mentioned.

The double value is to be taken,

The paterfamilias in whose house the stolen property is found is evidently himself a member of a[288] wider family group with common interests and liabilities. And the clause goes on to say that the accused must deny the charge with twelve co-swearers if the thing stolen be worth half a mark, or submit to the test of the ordeal of hot iron.

In Chapter XCIX. the ordeal of hot iron is described as having three forms: (1) that of walking on twelve red-hot plough-shares; (2) that called ‘trux iarn,’ applied to cases of theft: i.e. carrying an iron twelve feet and then throwing it into a basin; (3) that of carrying it nine paces and then casting it down: called, from the throwing, scuzs iarn. After the ordeal the feet or hands, as the case might be, were to be wrapped in cloth and sealed to prevent fraud, and so to remain till the sabbath, on which day it should be opened and viewed in order to ascertain the innocence or guilt of the accused.

This is one of the clauses which fixes the date of the Latin version, for the ordeal was abolished in A.D. 1215.[191]

On the whole, we may fairly conclude that the Scanian law when regarded from a tribal point of view affords additional evidence of family occupation or ownership and of the solidarity of the family group in Scandinavian society. But at the same time it shows that in Scandinavia, as elsewhere, family ownership was gradually succumbing to the new rules of individual ownership.

The same process of gradual disintegration of tribal usage is visible also in the chapters relating to wergelds.

[289]

In Chapter XLIII. it is enacted that the amount to be paid for homicide is not to exceed 15 marks of silver.

In Chapter XLIV. it is stated that the wergeld is to be divided into three equal parts, of which each is commonly called a sal. And in the next chapter, ‘De Compositione,’ we are told that before the time of the last constitution it always lay upon the slayer or his heir to provide the first portion only from his own property. He might then exact the second portion from his agnates, and finally the third and last from his cognates. Then it proceeds to say that, as excessive amounts were levied by violence upon the kindred, King Canute had laid down certain rules for the payments. Inter alia, it was enacted that of the two thirds falling on the kindred, both agnates and cognates being computed in their grades of kinship, the prior grade should always pay twice as much as the grades behind it.

Further, in Chapter XLVII. it is stated that according to ancient law the distribution should be so made that each third should be divided again into sub-thirds, one of which should be paid to the heirs of the slain, the second to the agnates, and the third to the cognates.

It appears also from Chapter XLV. of the Latin version and s. 84 of the Danish version that special care had been taken to prevent fraud on the part of the slayer in claiming the aid of his kinsmen. He was to pay one ‘sal’ of his own payment before calling upon them for their portion, which was called the ættæbot. He then was to collect together his father’s friends and compute with them what each[290] was to pay. And when the day for payment came, not a penny was to be paid into the slayer’s hands till the hour when he paid it over to the slain man’s kindred. Then they were safe. The same course was to be afterwards adopted as regards the payments of maternal relations.

The Latin version (Chapter XLV.) proceeds to say that this legislation not having been successful in extirpating fraud and discouraging murder, King Waldemar II. (A.D. 1202-1241) enacted that the murderer should be liable for the whole wergeld (instead of one third). The agnates and cognates were not to be forced by him to contribute against their will. Within three days the murderer was publicly to offer satisfaction or be outlawed, in which case he would be liable to be put to death by any one. In case, however, of his flight, his relatives, agnates and cognates, were individually to offer their proper share of two thirds of the wergeld or be liable to the vengeance of the relatives of the slain, so that the latter should not be deprived of all satisfaction.

These clauses throw some light on ancient custom, but they are evident signs of the gradual loosening of the ties of kindred.

In Chapter L. of the Latin version the payment for a servus is fixed at three marks, and in Chapter LII. the payment for a libertus is fixed at half that of the freeborn man.

It is difficult to judge how far these are to be taken as the ancient wergelds of Scanian custom, or whether they had been altered in amount by changes in the currency or recent legislation.

The wergeld of 15 marks of silver is exactly half[291] of that of the normal wergeld of the Norse hauld. And yet it does not seem likely that it had been reduced in amount by recent legislation when it is considered that under the Norse laws, as we have seen, the tendency seemed to be to add ‘sakauka’ to the ancient wergelds rather than decrease them.

It may be noted also that in a later addition[192] to the Danish version it is stated that ‘a man’s bot is 30 good marks and overbot 26 marks and 16 ortugs.’ And also in the ‘City Law’ of A.D. 1300 the wergeld is stated at 30 marks with an additional ‘overbot.’[193]

We seem bound to consider the wergeld of the freeborn man under the ‘Lex Scania antiqua’ of the previous century as 15 marks of silver.

The explanation probably may be that the bonde and not the hauld was taken as the typical freeborn man.

When it is further considered that in the Danish version of the Scanian law there is no mention of the hauld, and that, as we have seen, the bonde seems to have been regarded as the ordinary householder or paterfamilias of the family holding, the inference becomes probably a fair one that the bonde was the typical ingenuus or freeborn man for the purpose of the wergelds.

If this may be assumed, then the wergelds of the Scanian law accord well with the Norse wergelds. For in that case the wergeld of the bonde is 15 marks of silver in both laws. And further the wergeld of the libertus of the Scanian law and that of the Norse[292] leysing after he had made his freedom’s ale also correspond, being half that of the bonde.

It may further be noted that as in the Norse law so also in the Scanian law the payment for an eye or hand or foot was half a manbot, while the full manbot was payable if both eyes or hands or feet were destroyed.[194]

VI. SCANIAN AND LOMBARDIC CUSTOM COMPARED.

Before closing this very imperfect chapter on the Scandinavian laws it may be well to compare with them clauses from the Lombardic laws relating to the family holding of land and property ‘in communione.’

The laws of the tribes still remaining on the Baltic were five or six centuries later in date than the laws of the Lombardic emigrants who had left their old home and settled in the South upon Roman ground. And yet in this matter we find traces of the same ancient custom of family holdings underlying them both, notwithstanding wide separation, and what is more, of the same process of change going on notwithstanding the difference in date. Roman and Christian influences had not reached the Scanian district on the Baltic till the twelfth century, and were only then effecting changes which in the seventh century had already been accomplished in Transylvania and Italy.

The first clause to which reference may be made is s. 153 of the ‘Edict of Rothar’ (A.D. 643). It is[293] entitled ‘De gradibus cognationum.’ It is interesting as showing that seven generations were necessary to the complete kindred.

Seven generations would reach back to the great-grandfather’s great-grandfather, an important limit of kindred both in the Norse laws and those of the Cymri.

Another clause of the same edict (c. 167), under the heading ‘De fratres, qui in casam communem remanserent,’ enacts as follows:—

The rest of the clause refers to payments to a wife brought into the family holding by a brother. The ‘meta’ or portion has, in this case, been given to her on marriage out of the common property,[294] and so the rights of the other brothers have to be considered.

Attempts to settle such questions as these, whether and how far property acquired by one brother is to form part of the common family property or be retained by the brother acquiring it, and again how the fact that the payment for a wife’s ‘meta’ had been taken from the common family property was to affect the rights of the brothers when they came to a division, are in themselves good proof, so far as they go, of the continuance of family holdings. But the changes made by these clauses show the same tendency which we have seen in the Scanian laws towards individual ownership and the breaking up of the family holdings.

Finally, the point which in the Scanian laws was most suggestive of the original completeness of the family community of property, viz. that originally there was no succession of sons to their father’s share, but division per capita between the uncles on the grandfather’s death, appears again in the Lombardic laws and is dealt with in the seventh[295] century practically in the same way as in Scania it was dealt with centuries later.

From the tribal point of view the solidarity of the family group was the chief interest regarded. But the point of view was changed. Under the new influences the interests of the individual came more and more into prominence.

It now seemed unjust to the sons that their father’s property should be allowed simply to lapse into the common stock of the family till the grandfather’s death and then left to be divided among the uncles. And to mitigate the injustice the right to succeed was given, in the Lombardic as in the Scanian laws, to the limited extent that upon the grandfather’s death the sons took the share of their father with the uncles in the division, as if he had been living at the time.

S. 5 of the ‘Leges a Grimowaldo additæ’ is headed ‘De successione nepotum qui post mortem patris in sinu avi remanserint,’ and is as follows:—

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.

[297]

CHAPTER IX.
TRIBAL CUSTOM IN SCOTLAND.

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

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.

[298]

Thus in the ‘Leges Quatuor Burgorum’ is the following clause:—

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]

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.

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]—

[299]

Clause XV. deals with violence done in the king’s court:—

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.

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.

The following clause is further evidence of the continued right of vengeance on the part of the kin of a person slain.

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.)

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:—

The other part is as follows:—

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[302] 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.’

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[303] 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.

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]

[304]

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.

In IV. xxiii. a pledge is mentioned ‘quod vocatur culrach.’

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[305] mercenaria, is ‘una juvenca vel tres solidi’ with 3d. as rectum servientis. Surely a female slave is here intended.

This seems to be the minimum ‘merchet,’ for the clause proceeds:—

This clause regarding the ‘merchet’ is useful as giving a scale of values in cows and shillings.

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[306] 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.

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:—

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.

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[307] 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 (24d. of 32 wheat-grains), or 768 wheat-grains of silver being paid for the gold solidus of 96 wheat-grains.[205]

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.

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[308] 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.

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:—

It will be most convenient to put these payments of the cro and galnes into a tabular form.

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[310] 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 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.

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[311] 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.

The payments were as under:—

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[312] cows, the payment to the king for the breach of his peace (frith-bot) was 40 marks, i.e. 128 cows.[207]

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.

Put into a tabular form these payments are as follows:—

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.

These clauses of explanation are very important when we try to understand the laws to which they are appended as a whole.

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.

[315]

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 20d., while the cows in which the cro was paid were equated with three ores of 16d. 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.

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[316] 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?

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.[317] 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.

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:—

There are so many Gaelic words in this document that there can be little doubt that the turhochret[208][318] 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.

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[319] 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.

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.

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:—

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.

[321]

CHAPTER X.
ANGLO-SAXON CUSTOM FROM THE NORMAN POINT OF VIEW.

I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS.

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.

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[322] unofficial view of what Anglo-Saxon custom was or had been before the Conquest.

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.

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[323] share of the maternal kindred. In any case the right of the parentes was recognised when they were present.

Next with regard to the payment of the wergeld in the case of the slayer being a Norman or a stranger:—

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.

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[324] 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[325] 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.’

The amount of the wergeld according to Wessex law is thus stated:—

The Anglo-Saxon and Norman lb. of silver was 240d., and thus the twelve-hyndeman’s wergeld of 25 lbs. was the same thing as the ancient Wessex wergeld of 1200 Wessex scillings of 5d. Four pounds was a rough equivalent of the twyhyndeman’s wergeld of 200 Wessex scillings.

[326]

A little further on in the same clause is the following quotation from Ethelred II.’s compact with Olaf.

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.’

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:—

And in s. 13:—

[327]

The position of the wife under Wessex custom is further shown by the following:—

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:—

[328]

Following the case of the twelve-hyndeman a little further we learn that:—

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.

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.

Turning next to the case of persons twyhynde born—cyrlisci vel villani—more details are given:—

[329]

After stating their wergeld to be four pounds, the clause proceeds:—

There is evidently here an error. ‘V marc’ ought to be read 5 mancuses. The mancus was 30d. or 2s. 6d. Norman money and the halsfang therefore 150d. or 12s. 6d. Norman money, as stated in the following clause.

Thus we learn that in the case of the twy-hyndeman the halsfang of 12s. 6d. and the frumgeld of 7s. 6d. make up the first 20s. of the wergeld of four pounds. The clause proceeds:—

[330]

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:—

[331]

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 30s. (of 5d., i.e. 150d.), and that of the twelve-hyndeman 120s. (600d.) as in the Laws of Ine, s. 70.

In the so-called ‘Laws of Edward the Confessor’ c. XII. is the following:—

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[332] wergeld to the parentes of the slain.

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[333] 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.

In c. LXX. the custom of Wessex is stated thus:—

Thus while under the Danelaga the equal manbot of the villanus and of the socheman was 12 ores or 240d., we learn from these clauses that the manbot of the ordinary slave under Wessex custom was 20s. i.e. (if of 5d.) 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.

[335]

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 10s. 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.

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:—

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.

[337]

CHAPTER XI.
DANISH VIEW OF ANGLO-SAXON CUSTOM.

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

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[338] especially the moment of transition from the English rule of Ethelred II. to the Danish rule of Cnut.

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[339] law was mostly taken for granted.

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[340] 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.

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[341] 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.

The final clause is as follows:—

[342]

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[343] 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.

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[344] 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.

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.’[345] 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.

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[346] law in this respect under his English predecessor.

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.

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.

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[347] 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]

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.

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.’

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[348] of protection or mund.

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.

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[349] 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.

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.

The article on homicide in this ‘frith-mal’ is the only one which need be quoted here:—

[350]

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.”’

[351]

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.

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.

[352]

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[353] Æthelney.

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.

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):—

Now, in the first place, it is evident that this text describes the wergeld of two classes or ranks of persons.

[354]

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.

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[355] 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.

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.

[356]

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.

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.

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.

A clause which follows shows that it was expected that wergelds would still be paid:—

The further course of procedure is best given in the earlier fragment alluded to.

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:—

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.[359] The clause continues:—

The king’s mund-byrd, as we have seen, was equal to five pounds according to both English and Kentish custom.

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[360] we cannot be certain.

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

We now have to consider a group of fragments of uncertain date which seem to belong to the period of the Northmen’s settlement in Northumbria and invasions in Mercia.

The settlement of the Viking invaders made it necessary to fix the relation of their wergelds to those of the conquered English, and also to gather up fragments of Mercian custom. As the Dooms of Mercian kings have not come down to us, these fragments have a special value.

The importance of Mercia in King Offa’s time gives a special interest to any information on Mercian custom. And in other respects, scanty though it be, the retrospect of early Anglo-Saxon custom from the invaders’ point of view could ill be spared.

There are two valuable fragments on Mercian law.

The first is as follows:—

This fragment of Mercian law is preceded in the group of fragments ‘on oaths’ in Thorpe’s edition of the Laws by the following, which may or may not be[361] of Mercian origin:—

The other fragment of Mercian law is as follows:—

The Mercian wergeld of both twy-hynde and twelve-hynde men is thus stated in scillings, as usual, and the king’s wergeld—six times the thane’s—would equal 7200 scillings. The Mercian scilling was 4d., and thus, as stated in the text, the king’s wergeld would equal exactly 120l. or 28,800 pence or sceatts (in round numbers 30,000 sceatts).

This is useful as evidence that the sceatt of this Mercian wergeld was the silver penny of the Anglo-Saxon currency of 28·8 wheat-grains—i.e. of the Sceatt series—before Offa and Alfred, following the example of Charlemagne, superseded the ‘sceatt’ by[362] the ‘penny’ of 32 wheat-grains.

The fragments printed by Thorpe under the heading ‘North People’s Law’ and by Schmid in his ‘Anhang VII.’ seem to belong to Northumbria or more generally to the Danelaga. Schmid suggests that the ‘North people’ were the North folk of East Anglia. This, however, is perhaps more than doubtful, especially when it is considered that the Viking ‘armies’ had established themselves, not only in East Anglia and Mercia, but still more completely in Northumbria, many years before the struggle with Wessex had ended in the compact between Alfred and Guthrum.

The fragment of ‘North People’s Law’[236] opens with the statement that the king’s gild is 30,000 thrymsas—15,000 for the wergeld and 15,000 for the people (leodum).

In another MS. the wording follows the statement of Mercian law very closely, and agrees with the above in describing the amount in thrymsas.

Now, in the first place, what was the thrymsa, which occurs in these clauses for the first time?

A statement a little further on in one of the two texts of the same fragment fixes the value of the[363] thrymsa at three pence.[237]

The statement of ‘North People’s Law’ proceeds as follows:[238]—

Put into tabular form these wergelds would be as follows in thrymsas and Wessex and Mercian scillings:—

The ceorl has a twyhynde wergeld in Mercian shillings and the thane a twelve-hynde wergeld in Wessex shillings. There seems to be so far some confusion. But on the whole this reckoning seems to justify the opinion generally held that the Northmen coming as conquerors into Northumbria or the Danelaga had, at the date of these fragments, doubled the wergeld of the hold or hauld as compared with that of the English thane.

[364]

If, as seems reasonable, these fragments may be referred to the period following upon the Viking conquest and settlement in Northumbria and the foundation of Halfdan’s kingdom of York (A.D. 876), then the doubled wergeld of the hauld may be perhaps the high-water mark as it were of the invasion—the point of vantage at which it was natural for the conquerors to treat the conquered as a tributary race. And if it may rightly be so regarded, then it gives an added interest to the compact between King Alfred and Guthrum in 886. For then, the tide of battle having turned, the two kings at length met on equal terms and, undoing the earlier unequal settlement, now agreed to make Dane and Englishman equally dear.

A still more interesting point than the doubling of the conquering Hold’s wergeld as compared with the conquered thane’s is found in the subsequent clauses of this fragment, which seem to refer back to ancient tradition as regards the position of the non-Saxon subjects of Anglo-Saxon kings.[239]

[365]

The other version is practically the same:—

Now ‘hiwisc’ and ‘hyred’ both seem to mean family. In a roundabout indirect way ‘familia’ and hide meant apparently very much the same thing, but as the word hide is used in the same clause the more direct meaning may surely in this case be the important one.

It is probable that these clauses are variations or fuller expressions of the tradition described in c. 32 of King Ine’s Laws, which is as follows:—

And the additional information amounts practically to this—that the possession of a hide seems to have been held generally equivalent to the possession of a family homestead—family and goods—enabling a man to pay the king’s gafol.

It is when we pass on from these clauses to the next that fresh and welcome light seems to be gained upon the connection of the growth of a family and kindred with rise in status and social rank from a ceorlisc or twy-hynde position to that of the Gesithcund or twelve-hynde position. We are now no longer[366] dealing with the Wylisc man but with the ordinary twy-hynde ceorl. And the mention of the payments in thrymsas reminds us that we are still looking at things from the North people’s point of view.

The clauses in the two versions are as follows:—

And they may be translated thus:—

These passages are very important, as the most direct evidence we possess of the way in which under early Anglo-Saxon custom families became gesithcund by the gradual growth of a kindred whose kinsmen, like the odal-men of the Norse laws, could reckon four generations in succession of sufficient landholding.

The evidence is all the more interesting because it seems to come from the point of view of the Norse or Danish invaders making inquiry respecting English tradition and recording what had once been the custom of the conquered districts.

The same remark applies equally to another of these valuable fragments—‘Of people’s ranks and law.’ It, too, seems to look back and to record what once had been the custom of the conquered people.

These are the phrases of a writer looking back with regret upon ancient custom which to him is past or passing away.

After this follow clauses in one of which the word hyrede and the phrase ‘having so many hides[368] to the king’s utware’ again occur, words that seem to suggest that this fragment, while describing ancient English custom, hails from a somewhat similar source as the ‘North People’s Law.’

This seems to be practically identical with clause 9 of the previous fragment. Then follows:—

These passages we shall have to consider further when we sum up the evidence upon the Anglo-Saxon division of classes.

[369]

But there are two peculiarities which may be marked here as pointing to the archaic character of these precious fragments. First, the alliteration and rhythmical character of some of them, which points to an early and traditional origin, and, secondly, the direct relations of the classes mentioned to the king. The Wilisc man has to bring forth the king’s gafol. The ceorl who has five hides has them to the king’s utware and he becomes gesithcund and thane-right worthy with special duty in the king’s hall, while the thane is all the greater when he has a thane under him who has himself five hides to the king’s utware and goes with his errands to the king.

These are marks of direct relationship and service of the gesithcund classes to the king, to which we shall have to recur. They seem to point to the gesithcund class with its completeness of kindred as a privileged class in a semi-official position and from which the king’s officials were chosen. It is not until this relationship by service to the king has become established that a ceorl finds an entrance into the gesithcund class, and he does not become eligible for such service till he is surrounded by an adequate kindred.

In the meantime we may be thankful to the exigences of the Viking invasions for the preservation of these valuable fragments of ancient custom which might otherwise have been lost.

[370]

CHAPTER XIII.
EARLY ANGLO-SAXON CUSTOM.

I. KING ALFRED’S DOOMS.

In order that the examination of early Anglo-Saxon custom may be free from the intrusion of elements introduced by the Northmen, it is necessary to go back to evidence of earlier date than the laws of King Alfred. Though collected mainly from earlier sources, these laws took their present form probably after the Compact with Guthrum had been made.

They do not profess to be a full statement of early West-Saxon law. King Alfred himself declares that he dared not add much of his own, ‘But those things which I met with either of the days of Ine my kinsman, or of Offa, King of the Mercians, or of Ethelbert—those which seemed to me the rightest I have here gathered together and rejected the others.’

Under these circumstances it will be more convenient to refer back to King Alfred’s laws when needful in connection with the earlier evidence than to consider them as a separate whole.

There is, however, one subject upon which the evidence of King Alfred’s laws may properly be considered before passing on to the earlier laws.

[371]

We have seen that in the Compact with Guthrum the Anglo-Saxon ‘ceorl who sits on gafol-land’ and who was made ‘equally dear’ at 200 scillings with the Danish lysing was, if the words may be taken strictly, not necessarily a typical or representative member of the ceorlisc class as a whole. Only some of the ceorlisc class may have been gafol-geldas on other people’s land. It is important, therefore, to examine whether King Alfred’s laws afford contemporary evidence that the ceorlisc and the twy-hynde classes were practically the same, and whether they were, as a rule, gafol-geldas. We have seen, from the precious fragments before quoted, that under ancient ‘English’ law a ceorl could rise out of the twy-hynde class and become entitled to a twelve-hynde wergeld of 2000 thrymsas.

If such a statement had been found in West-Saxon law, the inference might at first sight be that the ceorlisc class could hardly have been mainly a class of gafol-geldas. The laws of Alfred surely ought to throw some light upon this important matter.

In section 39 is the following:—

The ceorlisc man in this section takes the place of the twyhynde man in contrast with the six-hynde[372] and twelve-hynde classes. The payments are the bots payable to the owners for fighting within their sacred precinct or inclosure, and the amounts following the proportions of the wergelds of the three classes are:—