YALE UNIVERSITY
LIBRARY

TRIBAL CUSTOM
IN ANGLO-SAXON LAW

TEIBAL CUSTOM
IN ANGLO-SAXON LAW

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

BY

FEEDEEIC SEEBOHM, LL.D., F.S.A.

LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK AND BOMBAY
1902
[All rights res or ved]

By IS, 4>l

PEE FACE

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 appa
rently 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 publica
tion of the three Essays has made it necessary to make

vi Preface
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, espe
cially 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 wer-
gelds 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 re
garded 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 com
pletes the preliminary evidence.
The inquiry into the tribal custom of the Continen
tal 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.

Preface 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 con
sideration is then given to the laws of the tribes con
quered 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 Conti
nental evidence will, I think, be accepted as a perma
nent 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 Preface
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 re
gard 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 un
known is essentially a tentative method. It necessarily
leads to results which, if isolated, easily mislead and
may be still more easily misapprehended. But correc
tion 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 edi
tions 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 com
petent inquirers, and these have generously given it a
place in the chain from which it would indeed be un
grateful in me to wish to unlink it. But I venture to
hope that the addition of this third Essay will be ac
cepted not only as a further Contribution to the under
standing of a difficult subject, but also as evidence that
kindly criticism of the former volumes has not been
thrown away.

Preface 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. Ehys
for help as regards the Irish and Welsh chapters-; and
to Mr. Craigie for careful revision of the text and trans
lations of the passages quoted from the early Norse laws.
To Prof. Liebermann and Mr. W. H. Stevenson, for help
in the reading of some difficult passages in the Kentish
laws, I am especially indebted. I regret very much that
I have not had the help which Prof. Liebermann's notes
to his text of the Anglo-Saxon laws would have been.
To Mr. F. G. Hill, of the British Museum, I owe very
much in connection with the study of the currencies
used in the various laws. Finally, I cannot too warmly
, express my gratitude especially to Prof. Vinogradoff,
Prof. Maitland, and Mr. W. J. Corbett, amongst others,
for the help and encouragement which only fellow-
workers can give to the otherwise solitary student.
The Hermitage, Hitchin :
Jwrvua/ry 1, 1902.

CONTENTS

CHAPTEE I.
THE currency in which wergelds were
RECKONED AND PAID.
SECT. I'AGK
I. CONNECTION BETWEEN THE WBEGELD OF 100 HEAD
OF CATTLE AND THE MINA OF 100 GOLD STATEES . 1
11. THE SAME EQUATION EEPEATED BETWEEN THE WEE-
GELDS" OF WESTEEN TKIBES AND 200 GOLD SOLIDI
OF CONSTANTINE . ..... 5
III. THE FBANKISH CUEEENCY  9
IV. THE NOEMAN AND ANGLO-SAXON CUEEENCY . . .12
V. THE MINAS WHICH SUEVIVED IN USE SIDE BY SIDE
WITH THE EOMAN POUND  13
VI. THE USE OF GOLD TOEQUES AND ABMDETS, ETC., IN
STEAD OF COINS  17

CHAPTEE II.
'SUMMARY OF THE CYMRIC EVIDENCE.
I. THE UNIT OF CYMBIC TEIBAL SOCIETY . . . . 21
II. THE CONSTITUTION AND WOEKING OF THE GWELY . 23
III. THE LIABILITY OF THE WIDEE KINDEED FOE GALANAS
IN CASE OF HOMICIDE  30

IV. THE FISCAL UNIT FOE THE PUEPOSE OF FOOD-EENTS
TO THE CHIEFTAINS 

33

xii Contents
SECT. PA<5E
V. THE METHOD OF PAYMENT OF GALANAS BETWEEN
KINDEEDS ... • ... 42
VI. THE AMOUNT OF THE CYMEIC GALANAS . • .46
VII. THE METHODS OF TEBATMENT OF STEANGEES OE NON-
TEIBESMEN  . 50
CHAPTEE III.
THE EVIDENCE OF BEOWULF ON TRIBAL CUSTOM
REGULATING FEUDS dc  56
CHAPTEE IV.
TRIBAL CUSTOM OF THE IRISH TRIBES
I. THE EBIC FINE OF THE BEEHON LAWS . . .73
II. THE HONOUE-PEICE (ENECLANN)  80
III. THE GRADATIONS IN EANK UNDEE THE BEEHON LAWS 83
IV. THE CUEEENCY IN WHICH THE BEEHON FINES WEEE
PAID  97
V. THE IEISH COIEP-DIEE AND HONOUE-PEICE TEACED
FUETHEE BACK THAN THE BEEHON LAWS . . 100
VI. THE BEBTON OE GALLIC WBEGELD OF THE SO-CALLED
' CANONES WALLICI '  105
VII. THE WEEGELD OF ANCIENT GALLIC CUSTOM. THE
EVIDENCE OF CESAR  115

CHAPTEE V.
THE WERGELDS OF THE BURGUNDIAN AND
WISIGOTHIC LAWS
I. THE BUEGUNDIAN WEEGELDS  121
II. THE WERGELDS OF THE LEX WISIGOTHOKUM. . . 126

Contents xiii

CHAPTEE VI.
TRIBAL CUSTOMS OF FRANKS AND OF THE TRIBES
CONQUERED BY THE MEROVINGIAN KINGS.
SECT. PAGE
I. THE WERGELDS OF THE LEX SALICA . . . . 131
II. THE DIVISION OF CLASSES AS SHOWN BY THE AMOUNT
OF THE WEEGELD .... . 147
III. TRIBAL RULES OF SUCCESSION IN ,' TEREA SALICA'. . 150
IV. THE WEEGELDS AND DIVISION OF CLASSES IN THE ' LEX
RIPUAEIOEUM ' . . . . . . .163
V. THE ALAMANNIC AND BAVAEIAN LAWS . . . . 172

CHAPTEE VII.
TRIBAL CUSTOMS OF THE TRIBES CONQUERED
BY CHARLEMAGNE.
I. THE EFFECT UPON WEEGELDS OF THE NOVA MONBTA . 179
II. THE LEX FEISIONUM  194
III. THE LEX SAXONUM  213
IV. LEX ANGLIOEUM ET WEEINOEUM, HOC EST THUEIN-
GORUM  224
V. THE SO-CALLED LEX CHAMAVORUM .... 229
VI. CONCLUDING REMARKS . . . . . . 231

CHAPTEE : VIII.
THE TRIBAL CUSTOMS OF THE OLDEST
SCANDINAVIAN LAWS.
I. THE MONETARY SYSTEM OF SCANDINAVIA ' . . 233
II. THE WERGELDS OF THE GULATHING AND FROSTATHING
LAW . . . . . . . . 238

xiv Contents
SECT. PAGK
III. THE GEADATIONS OF SOCIAL RANK DISCLOSED BY THE
WERGELDS ETC. ... . . 260
IV. THE CLASSES OF FREE MEN AND THEIR RELATION TO
LAND  ... 271
V. THE LEX SCANIA ANTIQUA  276
VI. SCANIAN AND LOMBARDIC CUSTOM COMPARED . . 292

CHAPTEE IX.
TRIBAL CUSTOM IN SCOTLAND.
I. TRACES OF TEIBAL CUSTOM IN THE LAWS OF THE
EARLY KINGS  297
II. THE ' REGIAM MAJESTATEM ' ... 302
III. ' LEGES INTER BRETTOS ET SCOTOS ' . . . 307
IV. RECOGNITION OF THE FOURTH AND NINTH DEGEEES OF
KINDEED IN SCOTLAND . ... 318
CHAPTEE X.
ANGLO-SAXON CUSTOM FROM THE NORMAN
POINT OF VIEW.
I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS 321
II. NORMAN VIEW OF WESSEX CUSTOM . . 305
CHAPTEE XI.
DANISH VIEW OF ANGLO-SAXON CUSTOM
I. THE ' DE INSTITUTIS LUNDONIE '— OF CNUT ( ? ) 337
II. FRAGMF.NT ' OF " GRITH " AND OF " MUND " ' 344
III. THE 'FRITH' BETWEEN ETHELRED II. AND 0LAp TRYQG.
VASON, A.D. 993 . 849

Contents xv

CHAPTEE XII.
ANGLO-SAXON CUSTOM FROM THE VIKING OR
NORTHMEN'S POINT OF VIEW.
SECT. PAeE
I. THE COMPACT BETWEEN KING ALFRED AND GUTHRUM,
A.D. 886  351
II. THE COURSE OF PROCEDURE IN PAYMENT OP WEEGELD 356
III. FEAGMENTS OF MEECIAN AND NOETH PEOPLE'S LAW . 360

CHAPTEE XIII.
EARLY ANGLO-SAXON CUSTOM.
I. KING ALFEED'S DOOMS  370
II. THE DIALOGUE OF EGBEET, AECHBISHOP OF YOEK, A.D.
732-766. ECCLESIASTICAL OATHS AND WEEGELDS 377
III. THE DOOMS OF INE, A.D. 688-725 .... 386
IV. THE POSITION OF STEANGEES IN BLOOD UNDEE KING
INE'S LAWS — THE SIX-HYNDEMAN . . . . 396
V. THE TWELVE-HYNDE AND TWY-HYNDE MEN AND THEIR
HYNDENS OF OATH-HELPEES  406
VI. THE GESITHCUND AND CEOELISC CLASSES IN THEIE
CONNECTION WITH LAND  417
VII. COMPAEISON OF WESSEX AND MERCIAN WERGELDS
WITH THOSE OF CONTINENTAL TRIBES . . . 436
CHAPTEE XIV.
THE LAWS OF THE KENTISH KINGS.
I. DISTINCTION FROM ANGLO-SAXON LAWS, A.D. 596-696 . 440
II. THE SC2ETTS AND SCIDLINGS OF THE KENTISH LAWS . 443
III. THE LAWS OF ETHELBERT  455

xvi Contents
SECT. PAGE
IV. THE LAWS OP HLOTH^EE AND EADEIC, A.D. 685-6 . 467
V. THE LAWS OP KING WIHTE^D, A.D. 690-696 . . 476
VI. THE DIVISION OF CLASSES UNDEE KENTISH CUSTOM . 481
VII. THE AMOUNT OF THE KENTISH WERGELDS . . . 487
VIII. RESULT OE THE KENTISH EVIDENCE . . . 492

CHAPTEE XV.
GENERAL CONCLUSIONS . . .496
INDEX . . .  533

CHAPTER I.
THE CUBBENCY IN WHICH WEBGELDS WEBE
BECKONED AND PAID.

I. CONNECTION BETWEEN THE WERGELD OP 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 per
haps 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,
B

The cur
rencies in which
wergeldswere paid

Cows.

Female slaves.

Silver.

Goldsolidi.

The Currencies of the Tribes.

Earlyequationbetween cattle and
gold.

Greekstater the
ox-unit.

in which the payments were, in practice, still
evidently made, at the date of the laws.
Professor Bidgeway1 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 agricul
tural 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

1 Origin of Currency and
Weight Standards, Camb. U.
Press, 1892.
2 For convenience I adhere
throughout to reckoning in wheat-
grains. Professor Bidgeway in
forms me that three barleycorns
were equated with four wheat-
grains, and that a passage in Theo-
phrastus shows that in the fourth
century B.C. 12 barleycorns = obol
and 12 obols = the stater. The
Greek diobol = therefore 24 barley
corns, i.e. 32 wheat-grains, and the
stater = 144 barleycorns, i.e. 192
wheat-grains. The reader will
understand that as Romans, Celts,
Anglo - Saxons, and Normans
reckoned in wheat-grains, there
will be great convenience in
adhering throughout to wheat-
grains in this inquiry. And further

the theoretic building up of
weights in wheat - grains was
preserved traditionally more
easily than the actual standards
of weight. 8 The range of the variation
in the actual weight of the stater
as a coin (without necessarily
implying variation in the theoretic
weight in wheat-grains) is given
by metrologists as follows :
Grammes
Babylonian . . 8'18
Croesus . . . 8-18
Darius . . . 8-36 to 8-41
Attic . . . 8-64 to 8-73
Philip of Macedon
and Alexander the
Great . . . 8-73
The Greek cities on
the Black Sea . 9-06.

Wergelds in Cattle and Gold. 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 Normal
natural that a round number of cattle should be on.00 S
chosen, and instances are not wanting in the Eastern cattle0*
world suggesting that ' a hundred head of cattle '
was a customary normal wergeld of wide preva
lence. Among the Arabs to this day Professor Robert
son Smith states 1 that the camel is the unit of pay
ment, 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 him
self 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.2
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
1 KinsMp Sc. im, Arabia, p. 53.
2 Ordinances of Manu, xi. pp. 128-131.
b 2

4 The Currencies of the Tribes.
redeemed as a chieftain's son for 300 oxen-being
apparently valued at a threefold wergeld on account
of his recognised princely rank.
Iliad XXI. 39. ' And at that time he sold him into well-peopled
Lemnos,' sending him on shipboard, and the son of Jason gave a
price for him and thence a guest-friend freed him with a great
ransom, Eetion of Imbros, and sent him to goodly Arisbe ; whence
flying secretly he came to his father's house (at Troy). Lleven
days he rejoiced among his friends after he was come from Lemnos,
but on the twelfth once more God brought him into the hands of
Achilles again.' T
71 'Then Lykaon besought him .... At thy table first I
tasted meal of Demeter on the day when thou didst take me
captive in the well-ordered orchard, and didst sell me away from
my father (Priam) and my friends unto goodly Lemnos, and I
fetched thee the price of an hundred oxen. And now I have
been ransomed for thrice that, and this is my twelfth morn since
I came to Ilios after much pain.'
The Now if a herd of 100 head of cattle had come to
werS be a common normal wergeld in the Eastern world,
Sthe and if the g°ld stater had come to be reSarded as
goia mina fa% ox-unit, it follows that the heavy gold mina of
staters. 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 Gortyn1 a man whose life was
forfeit for crime might be redeemed by his kindred
for 1 00 staters, i.e. the heavy gold mina.
The ransom of prisoners between certain Greek
1 Sections 8 and 11.

Wergelds of the Gold Mina. 5
tribes or states according to Herodotus was two minas,
i.e. one heavy mina.1
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 dedi
cated 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 WER
GELDS OF WESTERN TRIBES AND 200 GOLD SOLIDI
OF CONSTANTINE.
Following the same thread of suggestion and Thegoid
turning from the Eastern to the Western world, we c°onstan°-
pass at a leap from the Eastern gold stater of 192 £^_a
wheat-grains to the gold solidus of Constantine, of stater-
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 Constan
tine placed the world in possession of a fixed gold
standard acknowledged all over Europe and re
maining 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
1 Herod, v. c. 77 and vi. c. 79.

6 The Currencies of the Tribes.
some sense codified, almost always describe the
wergelds in gold solidi.
The gold solidus of Constantine was fixed by him
at tl of the Roman pound or \ of the Roman ounce.
The Roman pound (originally used for copper) was
built up from the scripulum according to the duo
decimal system of the As, thus :
Scripulum 24 wheat-grains = 1-135 grammes
Uncia(of24) 576 „ = 27'25
Libra (of 288) 6912 „ = 327-
Gold The solidus of Constantine therefore contained 96
tremisses ^eat-grains of gold, exactly the same number as the
wheat- Eastern drachma, and half that of the stater or
grains. .
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.
The So that, in wheat-grains, the very prevalent state-
wmgSd of ment of the wergeld of the full freeman in the laws
soHdf=d °f vari°us tribes as 200 gold solidi was in fact the
gold mina. 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 drach
mas, 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.

Wergelds of 200 Solidi.

as

Further than this, in the laws of some of the tribes, And was
we shall find, the double solidus or stater still

equivalentof 100
oxen.

Thestandard

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 preva
lent equation we shall still sometimes find the princi
ple 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 weighTof
of 200 solidi of Constantine was the exact equivalent ^.^ eat"
of the heavy gold mina reckoned in wheat-grains, there varied-
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,1
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 Baby
lonian 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

1 The latest results of metro -
logical research are most con
veniently stated by Hultsch in
his Die Qewichte des Alterthums
nach ihrem Zusammenhange
dargestellt, Leipzig, 1898. And

Mr. F. G. Hill, of the British
Museum, has recently issued an
excellent hand-book of the Greek
and Roman coins containing infor
mation on these points.

8 The Currencies of the Tribes.
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 fol
lowing 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.
The This is not the place to enter more deeply into
Roman lb. , i • i .
divided the metrological question, but its interest in this
smai^r0 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, con
sciously 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,

tremissesof 28-8
wheat-
grains.

The Prankish Currency.

9

was apparently of this ancient Eastern standard. And
Caesar himself, after his . conquest of Gaul, reverted
to it when he issued gold staters of one fortieth of
the Roman pound.1 Finally we shall find, in our next
section, the Merovingian Franks, consciously or un
consciously, doing the same.

Franksmostly
gold.

III. THE FRANKISH CURRENCY.
Most of the laws of the Continental tribes seem The early
to have had their origin in the necessity to commit of the"37
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 Mero
vingian 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.2 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 At first of
or copied the Imperial solidi and tremisses. But so°idiand
before long they issued an abundant gold currency tremisses '¦>

1 The relation of the ancient
Gallic gold currency to the subject
of wergelds is interesting and im
portant, but cannot be enlarged

upon here.
2 For the authorities for the
following short statement see
infra, Chap. VII. s. 1.

10

The Currencies of the Tribes.

afterwards of the
smaller
tremisses of 28-8
wheat-grains ;

then of
silver tremisses
or pence
of the

The nova
moneta of
Charlemagne.

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 -±> 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.

Charlemagne's 'Nova Moneta.' 11
The silver currency had by this time become His pound
predominant, and in the capitularies the silver solidus °ilver
of 12 pence had already come into use. Charlemagne, 0{em,isses
in issuing the nova moneta, made no alteration in the wheat-
0 grains,
method of reckoning, except that he brought the and silver
weight of the silver tremissis or penny back again to 0° account
the Imperial standard of 32 wheat-grains, thus making °^e
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 Made legal
1 : 4 between the two metals instead of the Imperial a6ratio of
ratio of 1 : 12. 1 \j, with
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 suc
cessors. 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

The Currencies of the Tribes.

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.

TheNormanand later
Anglo- Saxon
pound of 240
pence of
32 wheat-
grains.

The earlier
pound of
240sceatts or silver
tremisses of 28-8
wheat-grains.

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, Kke 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

Norman and Anglo-Saxon Currency. 13
across the Channel.1 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,2 the Roman pound
was not the only standard of weight which was in
customary use in Europe.
We have seen that the commonly prevalent The gold
wergeld of 200 gold solidi was in fact the same thing, 200 gold
 solidi.

1 Besides these silver tremisses
some silver scripula were issued,
but it is with the sceatts mainly
that we have to do. In connec
tion with the next section, how

ever, the fact that the scripulum
was current as a coin is worth
notice. 2 Metrologicorum Scriptorum
BeUquiae (Lipsiae, 1866).

14 The Currencies of the Tribes.
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,1 which was in fact a
The mina pound of 240 scripula of 24 wheat-grains. And two
of 240* of these pounds made what was called the mind Italica
0fr24Ula °f ^O Roman ounces. This mina Italica survived
wheat- into Merovingian times. It contained 480 Roman
20 Roman scripula, and according to authorities quoted by
Hultsch2 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
tmmes. In the Merovingian formulae and in the early
charters of St. Gall there are constant references to
fines of so many libra? 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.

1 Hultsch, Die Gewichte des Altertlmms, pp. 53 and 203.
2 Metr. Script, ii. 131-139.

The ' Mina Italica ' and ' Attica.' 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 uncice 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, pro
bably 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 ihenova 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 The mina
Anglo-Saxon and Celtic connections. 16 Roman
The other mina, the mention of which is im- ^marL?
portant, formed the probable basis of Scandinavian
reckoning in marks instead of in pounds.
The authorities collected by Hultsch describe this

16 The Currencies of the Tribes.
mina as of 16 Roman ounces, and as the ' mina Attica.'1
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 medieval times,
the pound of 12 ounces was ignored. A pound of
The mark, 16 ounces had taken its place. And this pound or
Sgo? mina of 16 ounces lay, as we shall find, at the root of
Scandi- tke SyStem of the earliest Scandinavian laws, with its
navia. •> . . , -. -,-,
monetary marks, ores, and ortugs, for it was tne 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 reckon
ing widely separated in origin, the one of gold and
1 Hultsch, Metr. Script, i. pp. 66 and 87.

Use of Torques and Armlets. 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 Wergelds
generally stated in the laws in gold or silver currency, cattle or
more or less directly equated with the cattle in which f°^e°\
they were originally paid, it would be a great weight.
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 Gold
payments in gold and silver were mostly made by &c. made
weight, and very often in gold articles — torques, certain
armlets, and bracelets — made to a certain weight. we!«ht ,
° and used
In the Scald's tale is the well-known passage : — in pay
ments.
He to me a beag gave
On which six hundred was
Of beaten gold
Scored of sceatts
In scillings reckoned.
Whether the true meaning be six hundred sceatts or
c

18 The Currencies of the Tribes.
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.
Gold and It may be mentioned, further, in passing, that
objects in many early Anglo-Saxon charters payments and
s^ many donations are made in gold and silver objects, and
mancuses. 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.1
Anhis- It may be worth while before concluding this
example, 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

1 Athelstan, vi. 6, s. 2 and vi. 3 ; and see Schmid's Glossary under
Geldtreclmung.

Queen Liutgarda' s Armillce. 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 Alcuin
Paulinus, the Patriarch of Aquileia, with two ^tlf1*
armillo3 of fine gold from Liutgarda,1 so that he and ^m^eleiB
_ D ° ' in the
his priests might pray for her. He stated in his scales of
letter to Paulinus that these armillas weighed ' xxiv. moneta.
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 x 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.2
And yet, though writing from Charlemagne's But in
Court, Alcuin, when addressing his ecclesiastical spondence
friends in Ireland, no longer used the terms of the J?*^
Frankish currency. It was after all a local one. "ses
J _ , Roman
Charlemagne's Empire had its limits, and Ireland weights.
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.

1 There can hardly have been
at Tours at this moment any other
Liutgarda than the queen under

Alcuin's spiritual charge.
2 For this incident see Alcuini
Epist. xxv.

c 2

20 The Currencies of the Tribes.
The siclus, according to the authorities collected by
Hultsch,1 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.
Arch As we proceed in our inquiries we shall find
Egtot another great ecclesiastic (Egbert, archbishop of York
also uses amj brother of the Northumbrian king) using the same
Roman . .
weights Roman monetary terms in replying to the question
local 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 con
stitution of tribal society, will become more and
more apparent as the inquiry proceeds.
1 Metr. Script, ii. 31, 99, 114, &c.

ones.

CHAPTER II.
SUMMABY OF THE CYMBIC 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.1
The chief fact revealed by the examination of the The
Extents and Surveys of different parts of Wales made ^"f3
after the English conquest, taken together with the landhoid-
. ° t. » o mg was
Cymric Codes, was that the unit of society and of the gweiy.
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 ' Gweiy.'
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 gweiy being
' lectus ' or bed.

1 For the references to the
Codes and Extents, and authori
ties for the statements in this sum
mary, the reader must be referred
to the former volume. But for

additional statements full refer
ences will be given. Where not
otherwise stated, the figures refer
to the two volumes of Ancient
Laws of Wales.

22 The Cymric Evidence.
The gweiy The form of society thus revealed was patriarchal
family in the sense that the common ancestor (generally
frea? °f a conceived to be the great-grandfather) during his life,
fath'r nd and even after his death, was regarded as the head
hisde- of the qwely or group of his descendants for three
scendants. . J ° , . , - . . „
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.
Sesmen Eeturning to the gweiy, we find that when a child
recover was born into it, whether boy or girl, it was formally
or'catt acknowledged by the kindred. It remained < at the
from him father's platter ' to a certain age (generally 14), and
chief for then the father ceased to be responsible. The boy
mainte- at 14 became the ' man and kin ' of the chieftain of
the family grouP> or it might be of the higher kindred '

nance.

The Gweiy or Family Group.

23

embracing several of the gwelys. From that moment The
the boy obtained by ' kin and descent ' a tribesman's 'Ssman
right of maintenance. That is to say, he received is5ePen,d-
° •" ent on the
from the chieftain his da, probably in the form of an cnief.> n°*
allotment of cattle,1 and with it the right to join in the father.
co-ploughing of the waste. He became thus a tribes
man 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 gweiy 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 gweiy 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,

1 Prof. Rhys informs me that
da in Carnarvonshire local dialect
still means ' cattle,' while in other
parts of Wales it has the wider
meaning of ' goods.'
The allotment of cattle in
volved grazing rights, and often
separate homesteads. Accordingly
in the Denbigh Extent we find
that so and so ' habet domum '
or ' non habet domum.'
This dependence for main
tenance of the boy upon the
higher chieftain is indirectly con
firmed by the Extents, which
mention among the chieftain's

rights the ' fosterage of youths '
&c. See Tribal System in Wales,
p. 169. That the chieftain who gives
the da was the ' chief of kindred '
and not a mere territorial lord is
shown by the fact that when a
stranger family have lived in the
land till they have formed a
kindred by intermarriage with
Cymraes, all the members of the
family become ' man and kin ' to
the chief of kindred of the new
kindred. Tribal System in Wales,
p. 132.

24

The Cymric Evidence.

Thesimplest
form of
the gweiy.
The
landed rights vested in
the chief,
and he
givescattle out
of the
commonherd to
tribesmen for their
maintenance. Probably at first no
succession
by repre
sentationon a
tribes
man's death.
But in the
codes a
peculium admitted which
went to
children.

A re-
division takes
place per
capita as
each
generation dies

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 chieftain
ship, with the landed rights and the herds, was
divided between his sons, who as brothers thus
became chiefs of sub-gwelys. But the original
gweiy 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.

Description of the Gweiy. 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 The rights
without issue, his brothers as brothers did not at pert/of a
once succeed as co-heirs. The share fell into the a^g1"*11
common stock till a division, and then went to all without
. . issue fall
the co-mheritors per capita, so that cousins, and into the
it might be even second cousins, took their shares stock.
in it. The introduction of succession by representa
tion 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 devolu
tion of the chieftainship in the gweiy, but it is a
point of interest in connection with the Continental
evidence. A clear understanding of the constitution and
working of the gweiy, 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 clauses in
Code describing what took place in the gweiy, aotian"6
under the heading ' The Law of Brothers for
Land : '
Thus, brothers are to share land between them : four erws to
every tyddyn [homestead]. Bleddyn, son of Cynvyn, altered it

Code.

26 The Cymric Evidence.
to twelve erws to the uchelwr, and eight to the aillt, and four to
the godaeog ; yet, nevertheless, it is most usual that four erws be
in the tyddyn. . . .
If there be no buildings on the land, the youngest son is to
divide all the patrimony (trew y tat), and the eldest is to choose,
and each in seniority choose unto the youngest.
If there be buildings the youngest brother but one is to divide
the tyddyns, for in that case he is the meter ; and the youngest to
have his choice of the tyddyns ; and after that he is to divide all
the patrimony; and by seniority they are to choose unto the
youngest ; and that division is to continue during the lives of the
brothers. And after the brothers are dead, the first cousins are to
equalise if they will it ; and thus they are to do : the heir of the
youngest brother is to equalise, and the heir of the eldest brother
is to choose, and so by seniority unto the youngest ; and that
distribution is to continue between them during their lives.
And if second cousins should dislike the distribution which
took place between their parents, they also may co-equate in the
same manner as the first cousins ; and after that division no one
is either to distribute or to co-equate. Tir gwelyaue is to be
treated as we have above stated.1

Clauses In the Dimetian Code the same rules of division
Dimetian are stated as foUows :
Code. When brothers share their patrimony (tref-eu-tat) between
them, the youngest is to have the principal tyddyn, and all the
buildings of his father, and eight erws of land, his boiler, his fuel
hatchet, and his coulter, because a father cannot give those three
to any but the youngest son, and though they should be pledged
they never become forfeited. Then let every brother take a
homestead (eissydyn) with eight erws of land, and the youngest
son is to share, and they are to choose in succession from the
eldest to the youngest.
Three times shall the same patrimony be shared between
three grades of a kindred, first between brothers, the second time
between cousins, the third time between second cousins, after
that there is no propriate share of land.2

pp. 167-169.

p. 543.

The Divisions in the Gweiy. 27
After there shall have been a sharing of land acquiesced in
by co-inheritors, no one of them has a claim on the share of
the other, he having issue, except for a sub-share when the time
for that shall arrive. Yet whosoever shall not have any issue
of his body, his co-inheritors, within the three degrees of kin
from the stock, are to be his heirs.1
Only by adhering very closely to these texts
can the gweiy 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 villatse in which the gwelys were located were
included also.
It would obviously be a fair critical question to How the
ask, what happened when the second cousins at last Alltel*
broke up the gweiy of their grandfather and divided ™l™ice
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 gweiy 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
gweiy 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 villatas ; and assume
that, according to the record, the internal divisions
of the gweiy followed the family division of the
descendants of X, as in the following table. Then,
applying the rules of the clauses as to tir gwelyaue,
let us see how it would work out in the hypothetical
case stated.

1 p. 549, s. 19.

cess is a
continuous one

28 The Cymric Evidence.
X, Great-Grandfather deceased
i

Son A
1

SonB 1
Grandson Aa Ab
1 1
1
B» 1
1
B" 1
1
G. Grandson |
A aa Ay& Al>b
[ 1 1
Ba» B*b B"*
1
1
B°
Now let us suppose that X (the great-grandfather,
from whom the gweiy is called the gweiy 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 grand
sons, first cousins, who have a right to share in the
rights of the gweiy 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 gweiy
goes on. It cannot be broken up because in another
generation the great-grandsons may require a fresh
division.
The pro- Next let us see what happens when all the grand- !
continua sons are dead and the final division per capita takes
place. There are nine great-grandsons. Is the
gweiy 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 l-3rd and the other
2-3rds. The portion which has fallen to them of
family rights in the gweiy of X has become a separate
The Divisions in the Gweiy. 29
gweiy, called either the gweiy of A or, as we some
times find in the Denbigh Survey, the ' gweiy of the
grandsons of A ' — ' gweiy weiryon A.' The other por
tion has become either the gweiy of B or the gweiy
of the grandsons of B — ' gweiy 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 gweiy of the grandsons of
B are Ba's two children have gths. \
W's three children have f ths. L of f ths.
Be's one son has Jth. j
They cannot break up the gweiy of ' the grand
sons 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 gwelyaue'
This seems to be the state of things as regards
succession within the gweiy 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 tribes
man had been the recipient of his da, an(J so had had
cattle of his own all along in the common herd.
Finally, the position of females in the gweiy should The rights
not pass without recognition. They are not men- °nth^aeS
tioned in the statements of landed rights because, §wely-
provision having' been made for their maintenance
independently of their father, they were assumed,
whilst claiming their k gwaddol ' or portion, to take

30 The Cymric Evidence.
this with them, on marriage, out of the gweiy. They
ought to be married into another gweiy, 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 gweiy.1

III. THE LIABILITY OF THE WIDER KINDRED FOR
GALANAS IN CASE OF HOMICIDE.
Such being the gweiy, we pass on to the wider
kindred, embracing the descendants of seven (and
for some purposes nine) generations from a common
ancestor.
The We find from the Cymric Codes that the members
mUeiTof of the wider kindred had common responsibilities in
bet0llfeud case °^ a h°micide causing a blood feud between
kindreds kindreds. A murder within this wider kindred was
cide, but regarded as a family matter. The murderer was too
within the near °f blood to be slain. No atonement could be
kindred. ma(je for so unnatural a crime. There was no blood
f fine or ' galanas ' within the kindred. The murderer
\ j- must be^exilgd. 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

' i. 96 and 545.

Liability of the wider Kindred. 31
varying proportion according to nearness of relation
ship 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 Payment
receive was moreover complicated further by the oeiptby
fact that it involved maternal relations as well as mate™al as well as
paternal relations. It has been very properly pointed by pater-
out that, however it might be as regards money tions.
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 th^
which in theory the link of marriage ought
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 gweiy,
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

The Cymric Evidence.

Marriage a link
between
two gwelys.
But as
regardsgalanas
the wife
remainedin her own
kindred.

In such matters it is obvious that a good deal
must depend upon the view taken of marriage itself
at the particular stage of evolution in which the
society might be. And it may as well be said at
once that we should be quite wrong were we to
regard marriage from the Roman point of view, i.e. as
a transfer of the woman out of the potestas of her
parents into the potestas of the husband. The Cymric
example, to begin with, was quite different. The
marriage of sisters to tribesmen from whom their
sons could inherit tribal rights was a duty cast upon
the kinsmen of the gweiy.1 It was thus an arrange
ment 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.2 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.3 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.4
These points are in a sense unexpected. They
belong to a stage of social life as far removed from

1 If the sister was married to
an alltud and her son killed a
person, § of the galanas fell on the
mother's kindred (i. p. 209), but
there was no liability beyond the
gweiy or second cousins (ii. p. 657).
2 'The galanas of every female
shall always be to the kindred,'
i. p. 241.
3 ' Three cases wherein a wife
is to answer without her husband.

The first is for homicide,' i. p. 463.
But for accessories to murder she
and her husband pay her camlwrw
and derwy, i. p. 105 ; and she can
claim spearpenny, i. pp. 103, 705 ;
ii. p. 65.
4 i. pp. 231-3, 409, 517, 747; ii.
p. 695. On separation husband
and wife divided the cattle and
most other things equally.

The Villata or Trefgordd. 33
Roman rules, or modern ones, as they are from
the stage in which a wife was either purchased out
right 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 The geo-
thing. The practical working of its rules is another. una \0™1
Until we can to some extent realise its methods and food rents-
see how its results could be worked out in everyday
life, it must remain to some extent vague and mys
terious. 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 aheady said, enables us to Districts
realise that, on the English conquest, the lordship of TiitaL.
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 villatpe, 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 gweiy the rights of families and individuals
were also undivided common rights.
Further, the Denbigh Extent shows how easy it
D

34 The Cymric Evidence.
was to shift the whole body of tribesmen of this or
that gweiy, with its herds, from one district to another,
according to convenience or the needs of population,
without disturbing the complex rights within the
gweiy. 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 descrip
tion 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 con
quest, from one district or 'villata' to another.
The geographical divisions thus became the per
manent 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 The surveys so far agree with the Codes. The
' trsf ' or
• maenoi ' villata of the surveys was the taxable unit, and in
?tunog e some cases still paid the tunc pound (or 20s.) in lieu
pound.' 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 maenoi of four trefs.
Now, as in the surveys the family groups or
gwelys were located so as to occupy sometimes :

The Villata or Trefgordd. 35
several villatas, and sometimes undivided shares in
villatse along with others, so, if we may take the
villata of the surveys as equivalent to the tref or
maenoi 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 maenoi 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 home
stead or hamlet, seems from its other meanings to
involve the idea of a group.
There were cases in which a disputed matter of The tref
fact had to be established upon the evidence of men Randirs.'
of the gorvotref i.e. by men of the groups outside the
tref in which the question in dispute arose.1 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.2

1 ii. pp. 281-2, 740. 2 i. p. 765 ; ii. p. 269.
d 2

36

The Cymric Evidence.

The
trefgordd of one
herd and
one
plough.

Speaking, then, of the group generally known as
a tref, we must regard it, not only as a taxable
area, but also as the natural group known every
where as a trefgordd, i.e. the natural group of the
homesteads of relatives or neighbours acting together
as a single community as regards their cattle and
their ploughing.
The typical lawful trefgordd is thus described :—
This is the complement of a lawful trefgordd : nine houses
and one plough and one oven (odyn) and one churn (gordd) and
one cat and one cock and one bull and one herdsman.1
There is another passage which mentions the
nine buildings in the tref.
These persons do not forfeit life . . .
The necessitous for the theft of food after he has traversed
three trevs, and nine houses in each trev, without obtaining a gift
though asked for.2
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.3 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.4
Not The description above quoted of the normal
onTgwe'ly trefgOTdd suggests that the herd under the one
only- herdsman did not belong to one person or home
stead, but to many; and so far it seems to be
consistent with the surveys which represent the

1 ii. p. 693.
' ii. p. 531.

3 i. p. 415.
1 i. pp. 259, 447,

The Villata or Trefgordd. 37
villatse 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.' x 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 The unit
was a working unit of co-operative dairy-farming, operative
The cattle of several households or individuals were Arming
put together in a common herd with a common bull
and under the care of a common herdsman (bugeil) The
and his dog. It may be regarded as a group of the herdsman
homesteads of the persons in charge of such a herd, *nd his
and the tribesmen of a gweiy 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
1 Tribal System im, Wales, App. p. 59, &c

of 24 kine.

38 The Cymric Evidence.
' indispensable ' of the hendrev,1 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.2
So far, then, as the pastoral element was concerned,
the trefgordd was occupied by a little group of tribes
men 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.
The herd 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 3 we are told that ' a
legal herd of cattle is 24 kine.' And custom tena
ciously 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. Ad., and ren
dering 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.4 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

1 The principal tref as con- ; ' ii. p. 563.
trasted with summer bothy on the ' 3 i. p. 795.
mountains. * Fol. 280.

The Villata or Trefgordd. 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.' 1
Having no cattle of his own in the herd, the herds
man'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.2 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. The
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
1 i. pp. 283, 499. 3 i. pp. Ill, 459 745 ; ii. p. 257.

40

The Cymric Evidence.

Thetrefgorddthe unit
for food
rents. Thetribesmen
could be
shifted
about.

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 tref
gordd.1 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,2 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 com
munity, it is obvious how easily it might become the
unit of tribute or taxation. Just as in the Domes-

1 i. pp. 201, 535.

ii. p. 493.

The Villata or Trefgordd. 41
clay 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 chief- The
tain of the tribe moved from one district to another -^^
and received his food-rents in the actual form of ' the ™>ffc-After-
night's entertainment,' each customary place of en- wards
campment in his annual progress would become the muted
centre at which the food-rents would be paid and money
services rendered for as many nights' entertainment Paymen*s.
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 him- '
self 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 The Cymric Evidence.
such and such a district, or of so many of its tref
gordds, 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 tribes
men in the rights of grazing and occupation of land,
we are now in the position to realise to some extent
what happened when ajrnurder had taken place.
No If it was of some one within the kindred, there
formurder was> as we have said, no slaying of the murderer.
Mndredhe Whether it were a parricide or a fratricide, or the
murder of a near kinsman, under Cymric custom
I there was no galanas, nothing but execration and
ignominious exile.

The blood But if a tribesman of one kindred were killed by
therefore a tribesman of another kindred, then it was a serious
N°eod matter of blood feud between the kindreds, or of the
kindS. Payment of tlie blo°d fine. The tribal conscience
demanded vengeance or composition.

Payment of Galanas.

43

It sometimes happened that the murderer had fled The slayer
to a church for safety, taking his cattle with him. Chur0h a
For the clergy or monks at the_rjlaceof_refuge ™tyehis.
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.1 There he remained presumably till the kindred of
the murdered tribesman, through negotiation and 
arrangement of the chiefs of the kindreds, had aggged
to accept the payment of the galanas, if it were the
case of an uchelwr or full tribesman, of 126 cows, six cows
Six cows, as we shall see hereafter, were saraad for B^.aa|
the insult, and 120 cows galanas for the murder. orinsult-
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 120 cows
payment, fortnight after fortnight instalments must
be paid till the whole number in value of 120 cows
was completed.2
But by whpm was the payment to be made ?3

by fort
nightly
instalments for

1 i. p. 141.
3 i. p. 229.
3 For the following statements

see Venedotian Code, i. p. 223,
&e. ; and Dimetian Code, i. p.
407, &c.

44 The Cymric Evidence.
The Forty cows must first be found by the murderer,
siayer-s his faffa, mother, brothers, and sisters with him. They
near ¦/ ' . ,n
family pay 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.1 The herds of many
a trefgordd must be thinned before this could be
done.
The other The remainder of the galanas, viz. 80 cows,
80!?;11 fell on the kindred, to the seventh degree or fifth
on tne ' o
kindred, 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,

1 Sisters paid for their possible j the sisters did not pay (i. p. 99).
children, and if these children ! That the daughter after twelve

were of age they paid instead of
their mothers. After the age at
which they could not have children,

was independent of her father
with da of her own, see i. p. 205.

Payment of Galanas. 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.1
But what happened if the murderer could not The
find the cattle for his third of the 40 cows which he ri^hTof
and his immediate family had to find ? He had yet ' sPenir ,
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.2
So this attempt to realise what was involved in The
the payment of an ordinary case of galanas brings us of the" 7
back to the recognition of the double aspect of the kin- an^indi-
dred in the structure of tribal society — its solidarity 7.idh"?.1,
and joint responsibility, on the one hand, as against within it.
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
» i. p. 229. 2 i. pp. 77, 103.

46 The Cymric Evidence.
Each had herd, each having received his or her da for mainte-
cattk? for nance by right of kin and descent from the common
nTncfand ancestor or chieftain of the kindred. The two things
so could surely hang together. And therefore, if we find in
to the " the laws of other tribes somewhat similar rules
payment. regar(jmg the payment of wergelds, it probably will be
worth while to inquire further whether the corre
sponding structure of tribal society, or something
more or less equivalent to it, may not be present also.

VI. THE AMOUNT OF THE CYMKIC GALANAS.
The In all the Welsh Codes the galanas, as aheady
and the mentioned, is described in a pecuhar form. It is a
distinct combination of two items, viz. the saraad, or payment
things. \ for ingUit; 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
foUowing passage : —
What is the galanas of the breyr without office ? Six kine
! and six score kine. The six score kine is the galanas and the
six kine is for saraad of the corpse.1
So also in the Gwentian Code : —
When a married man shall be murdered his saraad isi first
paid and then his galanas, for the wife has the third of the saraadr
and she has no part of the galanas.5

1 "• P- 693- * i. p. 747.

Amount of the Galanas. 47
So also in the Venedotian Code : —
No one is killed without being firBt subjected to saraad. If a
man be married, let a third of the man's saraad be given to his
wife and let the two shares be placed with the galanas, and after
that let the galanas be divided into three shares and let the third
share go to the lord as exacting third.1
The reason why the wife has a share in the The wife
saraad and not in the galanas has already been thesamad
explained. She suffers from the personal affront or °f huer ,
r _ r husband,
insult to her slain husband and shares in the saraad. not in the
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 sepa- t--"'
rate 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 j
comparison with Continental wergelds.
The real galanas of the uchelwr or breyr, apart That of
from the saraad, was 120 cows, and that of the «uecheiwr'
young innate boneddig who had received his da but ^ thc°ws '
had no family was 60 cows. In one of the Codes y°uns
i • i • • i ion tribesman
his galanas when married is said to be 80 cows. 60 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 ques
tion worth answering, because we may probably take
the Cymric method, of valuing the cow as a unit of
1 i. p. 231.

cow.

48 The Cymric Evidence.
currency in cattle, as at any rate suggestive of the
methods generally adopted by other tribes.
Deserip- According to the Venedotian Code the cow was
nOTmai e of full normal value when in full milk and until her
fifth calf. And if there be any dispute concerning her milk, she is to be
taken on the 9th day of May to a luxuriant place wherein no animal
has been before her, and the owner is to milk her without leaving
any for the calf, and put the milk in the measure vessel, and if it
be full twice a day that is sufficient ; and if it be not, the deficiency
is to be compensated by oatmeal until the feast of St. Curie,
thence until the feast of St. Michael by barley meal, and from
thence until the calendar of winter by rye meal.
Others say that the worth of the milk deficient in the measure
is to be returned to the possessor of the cow ; if half the milk be
deficient, half the worth ; if a third of the milk, a third of the
worth ; and that is the best mode.1
Then the milk measure is described thus : —
The measure for her milk is, three thumbs at the bottom, six
in the middle of the vessel, and nine at the top, and nine in its
height diagonally (enyhyd en amrescoeu), and the thumb whereby
the vessel is to be measured (in case of dispute) is the breadth
of the judge's thumb.
In the Dimetian Code substantially the same rules
are. given, except that the measure of the cow's
milking is smaller.
The measure of a vessel for a cow's milk is nine thumbs at its
edge, and three at the bottom, and seven diagonally from the off
side groove to the near-side edge in height.2
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.
Eeturning to the galanas; although it was
reckoned in the Codes in scores of cows, a fixed
1 i- P. 271. ¦ M. p. 565.

Amount of the Galanas. 49
equation had already been made between cows and
silver. The normal cow was equated in the Codes with The cow
' three scores of silver.' And in the Latin version of as three
the Dimetian Code the ' score of silver ' is translated ^^nces
by ' uncia argenti.' The score of silver at the date of of silver-
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 Tne
°, , , . , , / ° galanas
cows, and the cow being reckoned at three scores or of the
ounces of silver, the galanas would equal 360 scores 301^.™
or ounces, or thirty_p_gunds of silver. aratio A*
The ratio of gold to siTver~aTter the temporary of 1 : 12
x equal to
disturbance under Charlemagne had, as we have seen, the gold
settled down again to the Imperial ratio of 1:12. 200 solidi.
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

The Cymric Evidence.

Strangers
in blood
howtreated.

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 in
vestigation 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 Boman
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 he
found of an * embryo manor,' both Boman and
German elements probably combined in producing
the later manorial system and serfdom which grew
up in what were once the Boman provinces of Gaul
and the two Germanies, and even also in Britain.1
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.2
In Welsh tribal custom alltuds or strangers and

1 English Village Community,
c. ix. 2 For details and references

to the Codes I must refer the
reader to Chap. V. of The Tribd
System in Wales.

Strangers and Non-tribesmen. 51
their descendants (not necessarily otherwise unfree After four
persons) having some special circumstances in their tfonTon
favour, being allowed to settle within the district of *eyland
a greater or lesser chieftain upon land which, in a become
sense, may have been his demesne land, were free to gieba and
remove and settle under another chieftain, unless recog"
and until they had remained on the same land or °indrad£
under the same lordship for four generations. But
thereafter the great-grandchildren of the original
settlers became adscripti gleboj. 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 Their
not the special mark so much of a semi-servile increase
condition as of his want of recognised kindred, and wrJ* th of
under the local custom of South Wales it seems that kindred.
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
K 2

52 The Cymric Evidence.
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 recogni
tion 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.1
Want of Once more let us try to realise what this meant,
the key and what was the position of these Cymric non-
t0 *?ir tribesmen in regard to their settlement on land.
position. o
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 wj»
1 See infra, p. 319.

Strangers and Non-tribesmen. 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 The Cymric Evidence.
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 gweiy had
become adscriptus glebw.
Finally, the tribal logic of the case was probably
something like this : —
The The free tribesman is the man who belongs to a
a Mnfets kindred who can protect him by oath and by sword.
haTno110 Until a stranger has kinsmen who can do this he is
butlrorT an °dd or Sinless man' protected only by his- lord.
his lord If he be killed his galanas goes to his lord ; he has no
till a kin- , n . .
dred has recognised km to receive it. If, on the other hand,
froundUp |he is charged with slaying another, he has no kin to
him. l^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 aUtud becomes the founder of a
gweiy he has gained only half the status of a tribesman.
It is not till the fourth generation of descendants in
the gweiy, 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 gweiy, whose oaths
can be taken and who can protect him by oath and
sword or in payment of galanas. AU this time the-
alltud family have been more or less dependent on

Grades of Galanas. 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 : — *

The chief of kindred . . . 180 cows
The uchelwr  120 „
Man with family without office . 80 „
The innate boneddig unmarried . 60 „
The alltud of the brenhin or chief .60 „
The alltud of uchelwrs . . . 30 „
Bondman . . lib. of silver or 4 „
Bondman from beyond sea . . 6 „

In Gweht and Dimetia
540,andhisfamilyl80

CHAPTEE in.
THE EVIDENCE OF BEOWULF ON TBIBAL CUSTOM
BEGULATING FEUDS dc.
what The object of the short study, in this chapter, of
were the Beowulf, is to learn what incidental information it
laws of »" . , 7 , j. ,
the blood may give 0f tribal usage regarding the blood feud,
especially on points which, in the case of the substi
tuted wergeld, present doubt and difficulty.1
Allusion has aheady been made to some of these
points. Did the rule excluding galanas or blood-fine
within the kindred extend beyond the gweiy 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
1 they may turn up.
Beowulf for the present purpose may be taken as
1 In the quotation of passages from Beoiuu If I have mostly followed
Professor Earle's translations.

Rules of Blood Feud. 57

an Anglian or Northumbrian recension of a story An 8th
founded upon Scandinavian tradition, and designed story 3
for use or recital at some 8th century royal court — ]?j°°*
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 aheady been made out by translators
and critics.
And as the story involves a homicide within involving
Beowulf s maternal kindred, and fighting* and blood- feuds
shed between the kindreds in spite of the marriage Beowulf's
link, and as it deals also with outside feuds, it ^ernal
happens to present remarkable opportunities for matemai
studying the action of tribal custom in various
cases. The evidence it gives is made all the more

58 Evidence of Beowulf.
valuable by its being an Anglian version of Scandi
navian 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 The poet introduces us first to a tribe of Gar-
Scyidings. Danes and the dan 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 (masgdum) 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 (msegdh).
The burial A graphic description of the burial of Scyld in
by his his ships by his gesiths is a fitting introduction to
'gesiths. .^g poem. Let us mark in passing that the word
msegd evidently may mean a much wider kindred
than the near family of a great-grandfather's descend
ants (the Welsh gweiy). One msegd 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 maegd,

Scyld _
The great
grandfather

Beowulf
(not of the story)
The grandfather

Healfdenb The father

Hborogar
(61 and 467)
Hrothgar
The Seylding
m. Wealtheow
(61 and 613)

Halga
(youngest son)
(61)

Elan
daughter presum
ably married to
Ongentheow
the Soylfing
(62-63)

Heoroweard (2162)
Hrethric (1190. 1837)
Hrothmund

ta

Freaware (2023)

8T

Hrodulf
(1018, 1165,
1182)

Si.
Onbla
a-
Otherb
sister's sons'
Hrothgar 2929
*° 1
1
Eanmund 2929
Eadgil 239
60 Evidence of Beowulf.
The opening episode of the burial of Scyld is
foUowed by a few lines which reveal something of
the pedigree of his descendant Hrothgar the
Scylding. The pedigree of Hrothgar, in true tribal
Hrothgar fashion, makes Scyld his great-grandfather. He is
grandson 'Hrothgar the Scylding,' may we not say, because
«f Scyld. gCyi(j was fog great-grandfather, just as Hengist and
Horsa were Oiscings according to Bede, who in
stating their pedigree makes Oisc their great-grand
father, and just as in the Welsh surveys the gwelys
still bear the great-grandfather's name though he be
long dead, because the gweiy hangs together till the
fourth generation.
So far as it goes here is at least an indication that
the nearer kindred (or gweiy) 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 winemdgas (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).

Rules of Blood Feud. 61

(1) Links not stated

Ongentheow

who presumably I
married Elan, J Onela (
sister of Hrothgar 1 ] Eanmund
the Scylding (62) Ohthere

Eadgils

Second family of WjEgmundings.
.... [ Ecgtheow — Beowulf
(2) W^gmund . ¦ I who fled to
] Hrothgar
[ WlHSTAN — WlGLAF
At any rate the Scylfings seem to be divided into Beowulf
two families whose common ancestor was Scylf. grandson
But both Beowulf and Wiglaf are spoken of' as ^dlni
Wcegmundinqs (2608 and 2815). The headship of soaWseg-
„ . r munding.
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

Evidence of Beowulf.

Beowulf a, thane
of his
maternaluncleHygelac.

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 hearth-
geneats (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 ' mseg and mago-thegn,'
literaUy ' kin and son thane ' of Hygelac (408).
The daring deed accomplished, Beowulf s success
is rewarded by many golden and other gifts from
Hrothgar, and it is significant that on his return he
lays all these at the feet of his maternal uncle
Hygelac, his heofodmagus — chief of kin — whose man
and kin he owns himself to be. His position in
Hygelac's kindred thus demands careful study.
This seems to be the pedigree.
.(1) Herebeald
killed by Hsethcyn
Hethcyn

Hrethel
who had three sons
and one daughter
thus:

(2)
(3)(4)

Hygelac
m. Hygd.
A sister
Beowulf's mother

' (1) A daughter
who married Eofor
(2) Heardred
Hygelac's only son.
Beowulf
Hygelac's sister's son.

Beowulf is made to say that, when seven winters

Rules of Blood Feud. 63
old, Hrethel had received him from his father Ecgtheow
and had kept him as his own child (2420). ' Bemem-
bering kinship ' (sippe gemunde), the old chieftain
held him in no less regard than his own three sons,
Herebeald, Hsethcyn, and Hygelac. But Hrethel's old
age was full of trouble. The worst tragedy that Homicide
came upon him was the death of his eldest son Here- ^11° un?
beald, killed by his second son apparently by accident. aven§ed-
Hasthcyn by arrow from hornbow brought him (Herebeald)
down, his near kinsman. He missed the target and shot his
brother. (2410)
Here, then, was an apparently accidental homicide
within the family. How was it regarded ?
One brother killed the other with bloody dart. That was a
wrong past' compensation. . . . Any way and every way it was
inevitable that the Etheling must quit life unavenged. (2445).
The poet likens the father's grief to that of ' an
old ceorle ' who should see his young son ride on the
gallows-tree and can do nothing but wait while his
son thus hangs, food for the ravens, as he cannot
bring him help (2450).
So did the crowned chief of the Stormfolk, in memory of
Herebeald, carry about a tumult of heart-sorrow. He could not
possibly requite the feud upon the man-slayer, neverthemore
could he pursue the warrior with hostile deeds though not beloved
by him. He then, with the sorrow wherewith that wound had
stricken him, let go life's joys and chose the light Of God. (2464.)
Thus incidentally is revealed by the poet the depth
of the tribal feeling that homicide can only be atoned
for by avengement and feud, making it a hard
struggle against nature for a father to withhold
revenge upon a son for even accidental fratricide
As with the Cymry, it seems that there could be no

no part
in it.

64 Evidence of Beowidf.
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 Hsethcyn, 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.
Quarrel This next warfare was a quarrel — ' provocation
BeowuS's and reprisal ' — between Swedes and Geats, i.e. between
paternal the paternal and maternal kindreds of Beowulf. He
maternal himself, it is worth noting, did not engage in it. Onela
He takes 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. Beowulfs
maternal uncles, Hsethcyn and Hygelac, fought on one
side, and Ongentheow and his two sons on the other
(2485). Hsethcyn 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 Beowulfs maternal kindred.
All this irregular fighting, incidentally mentioned
by the poet, was past before Beowulfs great enter-

Rides of Blood Feud. 65
prise 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 Beowulfs nearer
belongings. The next event in order of date is a quarrel be- But in
tween Hygelac and the Frisians. This time Beowulf Frisians
fights for his chieftain. But Hygelac is killed (2357), Ig^or
and again the result reveals interesting traits of tribal Hygela°.
° ° who is
CUStom. killed.
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 chieftain
ship 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 Beowulfs
maternal and paternal relations rises up again.
The facts, when unravelled, seem to be these: —
Within Beowulfs paternal kindred trouble had arisen.
For some cause not told, the grandsons of Ongentheow
(sons of Ohthere) had been outlawed. They are
described as wrac-maegas (2380) and as having cast
off allegiance to the chieftain of the Scylfings. These
outlawed kinsmen of Beowulfs paternal family came '
to young Heardred's court, and whilst his guests ( ' on

66

Evidence of Beowulf.

Homicide
within the
kindredagain is un
avenged,
thoughBeowulf is
guardian of the
slain.

An outlawedtribesman
not protectedby his
kindred.

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 ap
parently 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
Beowulfs 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 ' (aeio).
Evidently the poet means to make it clear that
Onela's passive attitude was due to the fact that his

Rules of Blood Feud. 67
nephew was a lawless exile, and so no longer entitled
to protection from his kin (2612 and 2380).
The old sword known among men as the relic of Eanmund
(son of Ohthere), whom, when a lawless exile, Weohstan had slain
in fair fight with weapon's edge ; and from his kindred (magum)
had carried off the brown mottled helmet, ringed byrnie, and old
mysterious sword ; which Onela yielded up to him, his nephew's
war-harness, accoutrement complete. Not a word spake he
(Onela) about the feud, although he (Weohstan) had killed his
brother's son. He (Weohstan) retained the spoils for many a
year, bill and byrnie, until when his own boy (Wiglaf) was able
to claim Eorlscip rank, like his father before him, then gave he to
him, before the Geats, armour untold of every sort, after which he
gave up life, ripe for the parting journey.
Thus the restrained desire of avengement incident
ally 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 Waegmundings —
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. Beowulfs dying
words to Wiglaf were: 'Thou art the last left of
our kindred (cynnes) the Waegmundings. - Fate has
swept into eternity all my kinsmen (magas) — eorls
among men ! I must after them ! ' As he comes to
the rescue, Wiglaf remembers the honour done to
him by Beowulf, who had aheady passed on to him
the hereditary right of the chieftainship of the
Waegmundings (2608).
Why had he done this ? If we might tentatively
F 2

68 Evidence of Beowulf.
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
Beowulf paternal kindred. The right of the maternal uncle,
ter'sTon ' known to have existed under early Greek law, to
en?efmeS c^aim his ' sister's son ' if need arose, to perpetuate
of his the mother's paternal kindred, suggests a similar
kindred, explanation in Beowulfs 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 Beowulfs having been brought up from seven
years old in the household of his maternal grand
father, 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.1
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 Heretic,
' nefan Hererices ' (2207). Now his paternal uncles
were Herebeald and Hasthcyn, and it becomes an

1 See Structure of Greek Tribal Society, by H. E. Seebohm, chap. ii.

Etdes of Blood Feud. 69
almost necessary inference that Hereric was a mater
nal uncle. Thus .- H.ERETH (1929)
father of Hygd

(Hereric ?) Hygd, m. Hygelac
uncle of Heardred (2207) Heardred
nephew of Hereric l
(2207)
So also in the case of Hygelac himself. He was
the son of Hrethel. The poet calls him son of
Hrethel (i486), and again Hygelac Hrethling (1924).
But after Hrethel's death he calls him ' Hygelac of
the Geats, nephew of Swerting (' Hygelac Gedta 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 Tribal
have mostly to do in Beowulf, and nothing is more e^°m
strongly emphasised by the poet than the important marriage.
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.

1 Nefan cannot mean son or | father and his grandfather was
grandson, for Hygelac was his ' Hrethel.

70

Evidence of Beowulf.

Marriage
a link
between
kindreds.

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 men
tion 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 Frea-
ware 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
kiUed in the feud, and that the marriage of Frea-
ware to Froda's son, Ingeld, was to close the feud.
But Beowulf repeats aside to Hygelac that he does
not think much of the chances of a long continuance
of peace between Scyldings and Heathobeards (2030).
Well may it mislike the ruler of the Heathobeards and every
thane of that people when the lady goeth into hall with a prince
born of Danes, amidst the high company ; upon him do glisten
heirlooms of their ancestors, ringed harness, once Heathobeardic
treasure, while they could keep the mastery of those weapons and
until they in an unlucky moment led to that buckler play their
dear comrades and their own lives. Then saith one over the
beer, one who observes them both, an old lance fighter. . . . 'Canst
thou, my friend, recognise the blade, the precious steel, which thy
father carried into battle, wearing his helmet for the last time,
where the Danes slew him ? ... and the masters of the battle
field were the fiery Scyldings ! Now here a boy of one of those
banesmen walketh our hall . . . wearing the treasure which by

Rides of Blood Feud. 71
right should have been thine 1 ' So urged and egged on at every
turn with galling words, at last the moment comes that for his
father's deeds the lady's thane sleepeth bloodspattered after the
falchion's bite, life-doomed ! The other escapes alive 1 By-and-
by the sworn oaths of the warriors on either side will be broken,
when in Ingeld's mind rankle war purposes, and care has lessened
his domestic sorrow ! Therefore I deem not the loyalty of the
Heathobeards nor the alliance with the Danes secure, or the
friendship firm! (2033- 2069, slightly abridged.)
What a consistent light this passage throws
incidentaUy on the quarrels which, in spite of the
Geats and Swedes being bound together in friendship
by the marriage of Beowulfs 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 Beowulfs paternal kindred reveals the
melancholy fact that, however great the force of
tribal custom in controUing 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 Summary
tribal custom as incidentally revealed in Beowulf : — dence of
- (1) There is no feud within the kindred when one Beowulf-
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 murdfer within
the kindred breaks the tribal tie and is followed by
outlawry. (2) Marriage between two kindreds is a common

72 Evidence of Beowulf.
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 rela
tions, (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 rehnquish the right of chief
tainship 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 he
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.

CHAPTEB IV.
TBIBAL CUSTOM OF THE IBISH TBIBES.

I. THE ERIC FINE OP THE BREHON LAWS.
Beturning 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 Goideiic
likely most closely to accord with those of the Celtic custom
tribes of Ireland, Brittany, and Gaul. But it ^mred
must be remembered that the Cymry whose customs Cymric.
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 repre
sent 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 genera
tions to Boman 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

Irish Tribal Custom.

The Brehon
coirp-dire of all
tribesmen the same :
six
cumhals and one
added.

the conquests of Cunedda and his sons. They may
have had more in common with the Goidehc 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 resem
blances 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.1 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,
I or body-fine, the same for aU ranks, namely seven
cumhals or female slaves — the equivalent of twenty-
\pne cows.
And when this coirp-dire, or price of the body or
life of a man, is further examined, it is found to con
sist of two parts : (1) one cumhal of compensation
(aithgin) ; (2) the six cumhals of the coirp-dire proper.
In the tract ' Of every Crime ' - it is stated : —
If the man who is dead has a son, he takes the cumhal of
compensation alone. If not alive, his father is to take it. If not

1 The references in this chapter
are to the four volumes of The
Ancient Laws of Ireland. I re
gret very muoh not to have had
the advantage of vol. v. edited
by Dr. Atkinson and not yet pub

lished, but I am greatly indebted
to him for his kind help and
advice on many difficult points.
¦ iv. p. 259. This passage is
abridged.

The Irish Eric Fine. 75
alive, his brother ; if he be not alive, the nearest person to him is
to take it. And then the coirp-dire is divided :
3 cumhals to the son and the father ;
1 cumhal to the brother ;
1 cumhal to the son and father (sic) ;
1 to the geilfine from the lowest to the uppermost man ;
— so making up the 6 cumhals of the coirp-dire.
And in the 'Book of Aicill ' (p. 537) are these
lines : Three eric fines are counselled :
(1) There is paid full compensation ;
(2) And fair honest coirp-dire ;
(3) And honour-price is paid.
Besides this coirp-dire, therefore, was the eneclann, The
honour-price or price of_jhe face, i.e. payment for o'rtonour-
insult. And this was the payment, by no means con- .^ed
:fme~cTt.o homicide, which varied according to rank. with rank-
r ^~~ ' o The ' eric '
These two things then — the coirp-dire of seven cum- Hne in-
hals and the honour-price — made up together (with, bo"h?
in some cases, exceptional additions) the eric fine.
Next as to the persons liable for its payment.
In the Corus Bescna l the following statement is
made relating to homicide in cases where the homicide
was one of necessity : —
The eric fine is to be paid by the slayer's kindred (fine), as
they divide his property (cro). He (the slayer) shall pay a
cumhal of restitution (aithgin) and as much as a son or a father
of the six cumhals of the dire-fine.
As to crimes of non-necessity : — 2 ^
he himself is to be given up for it, with his cattle and his land.
If he has not enough to pay the eric or is not to The
, , , ,i kindred
be caught, then of 'near
n Pfl vtin ^
it is to be paid by his son until his cattle and his land be spent were i^bfe
on it (or failing him) by his father in the same manner. for the
 whole eric.
1 iii. p. 69. 3 Ibid, and iv. 245-248.

76

Irish Tribal Custom.

The ' hearths '
liable apparently to third
cousins.

Lastly, failing both the son and the father,
it is to be paid by each nearest hearth (teallach) to him until all
they have is spent, or full payment of the crime is made up
among them.
So that, in the absence or in default of the
murderer, at the date of this Brehon tract, his family
and kindred were answerable for the whole of the
erie-i-n the case of wihuljnurder.
The nearest hearths or ' fine who bear the crimes
of each kinsman of their stock ' were, according to the
Senchus Mor (i. p. 261 ) : —
1. Geil fine ;
2. Derb fine ;
3. Iar fine ;
4. Ind fine.
I think M. D'Arbois de Jubainville * is probably
right in explaining these four hearths or fines to be
groups or grades of kindred. He divides them thus :—

The geil fine

derb fine

iar fine

ind fine

father ;
son;
grandson ;
brother. grandfather ;
paternal uncle ;
nephew ;
first cousin.
great-grandfather ;
great-uncle ;
great-nephew ;
second cousin.
great-great-grandfather ;
great-great-uncle ;
great-great-nephew ;
third cousin.

Whether this interpretation of the Brehon scheme

1 Cours de Literature Celtique, tome vii.
CelUgue, tome i. p. 186.

Etude sur le Droit

The ' Four Hearths ' of Kindred. 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 kin
dred liable for the eric would include the sixteen grades
nearest of kin to the criminal. He himself, or the chief
tain, would form the seventeenth person on the list.
The tract ' Of every Crime ' seems to confirm the
view above taken. It states (iv. 241) that 'for the
crimes of every criminal ' he himself was first liable.
If he has absconded it goes upon his chattels ; living chattels
or dead chattels.
The liability falls next upon his father .and his The four
brother, but, according to the commentary, upon his • hearths*
son first, if he have one. These seem to be the ™™nt
qeilfine relations or nearest hearth. And after them kinsmen
. . m grades
it falls, according to the text, upon his ' deirbhfine of reia-
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 iarfirie and
other fines come in, according to the commentary,
and the chief is said to be that of the four fines.
The reason why the crime goes upon the deirbhfine division
and the iarfine division here before it goes upon the chief is

78

Irish Tribal Custom.

because it is one chief over them.
of the four families (p. 243).

His chief — i.e. the chief

The same
groups both
receivedand paid
eric.

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.1
The general correspondence between the obliga
tion to pay and the right to receive a share in
fines is shown by another passage from the Senchus
Mor:
The feini charge the liability of each kinsman [comfogius] upon
the other in the same way as he obtained his eric fine and his
inheritance.2

1 The view here taken, that
the four fines in the geilfine di
vision are classes or grades of
relationship, makes more intelli
gible the rules laid down in the
Book of Aicill (iii. 331-335), espe
cially the one which determines
that ' if one person comes up into
the " geilfine " so as to make it
excessive, a man must go out of
it into the "deirbhfine," and a

man is to pass from one division
into the other up as far as the
indfine, and a man is to pass
from that into the community.'
Obviously, as a fresh generation
comes into the nearest hearth, a
generation at the top naturally
moves out of the group. The
great-grandfather becomes a great-
great-grandfather, and so on.
* i. p. 263, and iv. p. 245.

Solidarity of the Kindred. 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 compensa
tion for his injury.
But it was not so in the case of homicide. It was
not a matter for the individual alone. Both in pay
ment and receipt it was, as with the Cymry, a joint
interest of the kindred
The following passage makes this clear : —
What is the reason that it is upon himself alone every crime
that a person commits goes, except killing, provided he has the
means of paying it ?
Answer. Because, though it be against him alone evil is done,
except killing, it is to himself alone it shall be paid. Every
killing, however, which he commits, it is not he alone that shall
pay for, thougIx_he has the means of paying for it, but it goes
upon the family (fine), and this is nowTEe- reason : because though
it were himself or his son that had been killed, it is the whole
family (fine) that would take the body fine (coirp-dire) of either
of them, and not his son or father.1
A still clearer indication of this solidarity of the The
family or kindred occurs in the Book of AiciU (p. 541) s°t lhfity
in regard to the right of the several members, kindred-
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

> iv. p. 245.

to eric.

80 Irish Tribal Custom.
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 : —
Summary (1) That the eric for homicide in Ireland was
ruies^ 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 AiciU, it is the honour-price of the slayer

The ' Honour-price.' 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 The
beginning of the Book of AiciU (p. 99). The heading, ^^l\
literally translated, is : ' Fmes._are_ djnibled_by_anger_ the slayer-
(ferg).' Then foUows 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 aggra
vation. The passage is as follows : —
Fines are doubled by anger (ferg).
The double of his own honour-price is due of each and every
persomwhether native freeman, stranger, foreigner, daerman, or
looker-on; for the crime of sp&cet murder.1
And then the commentary goes on to say that if
it was the same person who kiUed and concealed
a fine of 7 cumhals and full honour-price for the concealing, and
7 cumhals and full honour-price for the killing, which is twice
7^iumhals and double honour-price upon a native freeman for
secret murder.
Obviously the honour-price in both cases is that of
the murderer, for a little further on is a statement that
the same fine is upon a nativ* freeman for looking on at the
killing of a native freeman, or a stranger, or a foreigner, or a
daerman.2 But besides this honour-price of the criminal, as The
we have seen, other payments had apparently to be p°i0e 0f
made to the relatives of the slain, for breach of their ^e0f^
protection or for injury sustained, and these were kinsmen.
1 iii. p. 99. 2 p. 101.

82 Irish Tribal Custom. \
measured by the honour-price of the recipients ipd
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.
The A passage in the Book of AiciU (p. 107) incident-
prioe"of ally seems to show that the son of a person slain
teotor°of could choose whether to claim honour-price on the
the slain. SCale of his own social rank, according to right of pro
perty, or of the status of his father or grandfather, or
that of the chieftain under whose protection he hved.
If, having been given his choice of taking honour-price in
right of property, or honour-price in right of his father and bis
grandfather, he made choice of honour-price in right of his
property, and decay came upon his property so that he has Peft]
but the kingship of the three handles — the handle of his flail, the
handle of his hatchet, and the handle of his wood axe ; he is
(then) entitled to but one screpall for his worthiness if he be
worthy ; and if he be not worthy he is entitled to nothing, unless
children have been born to him afterwards which he had not
before on the day of making his choice, and if they have been
born he has honour-price in right of them.
The passage goes on to mention the case of his
having made choice ' to have honour-price in right of
his relations or in right of his chief.'
In the Senchus Mor (i. p. 275), without direct
mention of the case of homicide, is the following
statement : —
The honour-price is fourfold. Full honour-price is due to one
for his father, half honour-price for his father's brother, olo third
honour-price for his son or his daughter, one fourth honour-priM
for his grandson.
On the whole it may be gathered from the Brehon

Gradations in Rank. 83
tracts that, whilst the coirp-dire or body fine was a
fixed amount, the eric or fuU 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 The
mentioned the midboth man or ordinary freeman 0r ordi-
without land or cows (?). He is said to be entitled, as ^ ^e|"
food aUowance, to the humblest fare of ' milk and hl,s food
allowance.
stirabout' and for himself alone (iv. 301).
His honour-price is only a dairt heifer jor 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
e 2

84 Irish Tribal Custom.
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 ease 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).
The ^ So in the same way a bo-aire has land of twice
seven cumhals, and he has half of a fuU 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 fuU 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 aflaith (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 pre
cinct 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).

; bo-aire.'

Gradations in Rank. 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 fiaith chief.
In another tract, among other disconnected items
are the following : —
Whatever number of the divisions of the bo-aires happen to
be contending, though one of them be older than the others, the
grade which is most wealthy, i.e. in point of wealth, it is it that
takes precedence.
He is a hill of chieftainship in the third person.
Unless his father and grandfather were fiaith, though he may
be of the same race as to his origin, his chieftainship is lost to
him. A plebeian chief is one whose father or grandfather was not a
chief (fiaith). (iv. pp. 379-381.)
It would seem from these statements that to
become a fiaith 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 grand
father before him must have been flaiths.
So too in the ' Crith Gabhlach' (iv. p. 321) the The 'aire
aire desa must be the son of an aire and the grand
son 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 The • aire
ten saer, and in his turn he takes proportionate stock ** '
from his chief (iv. p. 325).
The aire tuisi has twenty-seven tenants, fifteen The ¦ aire
giallna and twelve saer, and he takes himself propor- tms1'

86 Irish Tribal Custom.
tionate stock from a king, 'and he makes corus-
arrangements in the raith right of his father and
grandfather,' whatever this may be (iv. 325).
The ¦ aire Above him is the aire forgaill, with forty tenants ;
forgaiii.' and &t thg head of the flaith or chieftain grade comes
The ' Ri- the Ri-tuaithe, who is the chief or King of a Tuath.
tuaithe.' We need nofc attempt to discuss the detaUs of
Tbe lower this hierarchy of chieftains. It is enough that,
gradestake throughout, the lower chieftain takes stock from and
stock from & ' • <. • Ti
the higher payS food-rents to the higher chieftain, or the Ei-
food-rents tuaithe, as the case may be. So that the grades of
to them. tr^ai rank were connected by the hnk 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 fiaith or chief, we
have seen that it consisted not only of his kindred,
but also of other dependents.
The other We have seen that the chief had both giallna and
ae"hiefB ° saer tenants, and that he supplied these tenants with
tam- stock, and received food-rent and services in return.
In the second volume of the Senchus Mor x are two
chapters on Saer-raith and Daer-raith. And the two
kinds of tenancy are explained somewhat as foUows^
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 per
form 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

1 ii. p. 195.

Tenants of Chieftains. 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 glebo?.
But if he chooses to receive stock from another Effect of
chief he can give it up when he likes, unless not anee 0f "
having returned it for three lifetimes, he has let the f^^ree
chief get a permanent hold on him, but this must not lives-
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 posi
tion 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 ox fiaith rank.
He cannot separate from his own king (ri) at any time, either
in saer-rath or daer-ia,th, unless the chief be indigent. . . . His
own aire of the fiaith grade is in the same position as his own
king (p. 211).
On the other hand, whilst in the case of stock
taken from another chieftain the contract can be
ended on either side (except after three lives), the
hereditary king or chieftain cannot, without good
reason, withdraw the stock from the tenants.
If he be his own king he can never take away either his saer
stock or daer stock unless the tenant be indigent, and there are
no life separations between the tenant and his own hereditary
king unless either of them act illegally, &c. . . .
The tightness of the tribal bond is shown stiU
more clearly by the statement that the chieftain
himself is not competent to forgive, so as to bind his
successors, the food-rent due from the tenant.
The food-rent is free to the successors of the chief ; for the
chief is not competent to forgive the payment of what supplies his
house (p. 213).

88

Irish Tribal Custom.

So much we gather from the chapter on saer-r&th.
Now as to da^r-rath (p. 223). No one was bound to
take daer stock from any one, not even from his own
chieftain or king. Taking daer stock was therefore
a matter of contract, and a contract by a tribesman
affected his fine or kindred.
The stock is received by the tenant either with or without
the knowledge of the fine, for if it was unknown to them they
could impugn his contract, but if it was within their knowledge,
though the stock be ever so great, it is fastened upon them.
The fine had a voice, presumably lest it should be
found that cattle in their family herd, unknown to
them, might belong to some outside chieftain. And
further, if continued for three fives, 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 glebo3,
after three there is mention of fuidhir tenants. They seem to be
genera- "
tions. strangers, admitted, like the Cymric aUtuds, upon a
chieftain's land, and, like the Cymric aUtuds, free to
move away, until by residence for three generations
they also have become recognised as freemen, and
at the same time adscripti glebo3.
In the tract, ' Divisions of the Tribe of a Terri-

' Fuidhir
tenants
become
adscripti

tory,'

is

the foUowing

mention of the fuidhir

tenants, confirming what has been said above.
It occurs in the commentary : —
His fuidhir tenants, i.e. they become free during the time of
three persons ; the fourth man is called a daer-bothach person ;
the fifth is a sencleithe person.

1 iv. p. 283.

Tenants of Chieftains. 89
The fifth person would be the great-great-grand
son of the original fuidhir. Further on (p. 287) is
the following : —
The families of the fuidhir tenants are subject to manifold
divisions. The son is enriched in the same ratio as his father,
and the father does not sell anything to the prejudice of his sons,
grandsons, great-grandsons, or great-great-grandsons.
The chief point of interest is that the men of the The fifth
fourth generation of fuidhirs, according to the above- become
quoted passages, became daer-bothach persons — half o^the.'
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.
tn the Book of AiciU (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,
' tiU five persons : ' that is, till the fifth generation.
The number of generations required does not,
however, seem to have been absolutely uniform.
The foUowing is from the ' Crith Gabhlach '
(p. 321) :-
If there be service from them (cottier and fuidhir tenants
which he, the chief, brings upon the land) to ' fiaith ' chiefs to
nine times nine (years ?), they are cottiers and fuidhir tenants ;
they are sencleithe tenants from that out.
In the Editor's note (p. 350) to the sequel to the
' Crith Gabhlach,' there is a statement that the sen
cleithe 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

Irish Tribal Custom.

Compari son with
Cymric custom as to

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.1
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
strangers, tenants became in some sense adscripti gleboe, like
the Cymric aUtuds, and at the same time formed a
group of kindred very much like a Cymric gweiy.
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, aU the
Brehon tracts have not yet been pubUshed, so that
we have as yet only part of the evidence before us.
Still it seems to be safe to say that there are indica
tions 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 per
formance of services to chieftains of higher rank.

1 Dr. Atkinson has kindly given
me a reference to MS. H. 3-18,
237 and 485, the former of which
ends its paragraph on ' sencleithe '
thus : — ' If he serve from that on

ward, till the fifth man come and
during the time (7ns time ?), then
he is a sencleithe and he cannot
go from the heirs [comarba] for
ever after.'

Acceptance of Stock. 91
Further, without pressing too far resemblances and as to
which are not complete between Irish and Cymric j^we'en
custom, it may at least be suggested that the Irish <*jef and
J °° tribesmen
example of the acceptance of stock by the young made by
og-aire from the chief of his family, or some higher and ae-
chieftain whose man he was or became, may throw of^attS
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
aU 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 The
. , amount

grade is given

as below : —

of the
honour-

Midboth men

. a dairt heifer

or colpach heifer

price of

Og-aire .

. 3 seds of cow

kind

each
Bo-aire .
. 5 seds
or = 1 cumhal
grade.
Aire desa
. 10 seds
or = 2 cumhals
Aire ard .
. 15 seds
or = 3 cumhals
Aire tuisi
. 20 seds
or = 4 cumhals
Aire forgaill
. 15 seds (sic ; ?
30 seds)
or = 6 cumhals.1
Ei-tuaith
7 cumhals
1 See Senchus Mor, i. p. 76 and iii. p. 43.
92 Irish Tribal Custom.
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 AiciU (p. 475) and
from a statement in the Senchus Mor (i. p. 76) in
which the honour-price of the aire forgaiU is stated
to be 6 cumhals.
It seems, then, that the honour-price of the Ei-
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.
Difference The whole eric fine for homicide, including the
thelrisn coirp-dire and additional payments of honour-price,
th"0 ' and evidently fell very far short of that of the Cymric
Cymric galanas. Even in the case of the Bi-tuaith or highest
chieftain slain by one of his own rank, the eric can
hardly have exceeded the galanas of the young un
married 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.
The It ruled the value of ' his oath, of his guarantee, of
prtaTthe his pledge, and of his evidence.' These according to
IS power tne ' Crith Gabhlach ' (p. 307) were the four things in
of protec- 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

tion.

Example of Eric. 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 A typical
may be the result of the foregoing examination of the eric from
Irish evidence, we are now perhaps in a position to senehus
appreciate, for what it is worth, the curious case Mor-
described in the Senehus Mor.1 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 prac
tice, 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.
1 i. pp. 65-77.

94 Irish Tribal Custom.
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 Dom 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 caUed 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 settle
ment 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.

Example of 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 bond
woman, 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 Final
each side, beginning with the slaying of Eochaidh of^f?
while under the protection of Fergus, as follows : — mentsa ±
x ° agreed to.
Fergus, being king of a province, was entitled to 18 cumhals
both as airer-fine and honour-price for the violation of his pro
tection. There were also due to him 9 cumhals for his half airer-
fine and half honour-price for Dorn's insult in reproaching him
with the blemish ; so that this was altogether 27 cumhals to Fergus.
On the other side the Feini claimed as follows : —
Honour-price was demanded by the Feini fo* the killing of
(Dorn) the pledge, for the pledge they had given was without
limitation of time, and for it 23 cumhals were payable by Fergus
for airer-fine and honour-price, for the authority of Fergus was
opposed at the time.
This seems to have settled the matter between the
two tribes ; i.e., so to speak, the public matter between
the Feini and Fergus's people. But there were

96 Irish Tribal Custom.
individual rights to be considered also. Besides these
23 cumhals due to his tribe,
Buidhe was entitled to honour-price for the killing of his
daughter, i.e. he was an aire-forgaill of the middle rank and was
entitled to 6 cumhals as honour-price. Her brother was also
entitled to honour-price for her death ; he was an aire-ard and
was entitled to 4 cumhals as his honour-price.
Why the other brother had no claim for honour-
price does not appear — perhaps the one brother was
the representative of the brothers as a class. The
total sum demanded on Dorn's side was therefore
23 + 6 + 4 cumhals = 33 cumhals.
So that this which the men of the South demanded amounted
to 33 cumhals, and the men of the North demanded 27 ; and a
balance was struck between them, and it was found that an
excess of 6 cumhals was due by the men of the North, for which
the land Inbher-Debhline was again restored by the men of the
North. The commentary goes on to say : —
And it is evident from this, that when a man has paid eric
fine, should the person to whom it has been paid commit a crime
against him, the law orders that his own eric fine should be
restored to the former should it be better than the other eric fine.
In this case the land which had been taken by
Fergus as ' seven cumhals of land ' was returned to
pay for the balance due of six cumhals only.
It will be observed that whilst the father and
brother of Dorn had their own honour-price allowed
for her slaying, no coirp-dire was claimed for the life
of Dorn herself. The reason is given as foUows :—
What is the reason that the land was restored by the people
of the North and that the eric-fine for the woman was not restored,
whereas both had been given (to Fergus) as eric-fine for trespass?
The reason is the woman committed an offence in the North
for which she was forfeited, and the land did not commit any
offence for which it could be forfeited, but it was returned in part
payment for that trespass (i.e. the killing of Dorn).

Payment in Female Slaves. 97
IV. THE CUEEENCY IN WHICH THE BEEHON 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 Payment
cumhals or female slaves. The cumhal was equated haiTor"
with three cows, but the payment was reckoned and ^^f*
stated in cumhals. The female slave was the pro
minent customary unit of payment, and doubtless a
common object of commerce and trade.
The equation of the cumhal and the cow with Cumhai =
silver was also remarkable . The cow was equated with bounces5
the Boman ounce, and the cumhal with three ounces. of silver-
From a passage in the Senehus Mor (i. p. 247)
and the Book of AiciU (pp. 371-377), the foUowing
table of values is evolved : —
8 wheat-grains = pinginn of silver
24 „ (3 pinginns) = screpall
72 „ (3 screpalls) = sheep (B. of A. p. 377)
96 „ (4 screpalls) = dairt heifer
576 „ (6 dairts) = bo, or cow, or unga
1728 „ (3 bo) = cumhal or female slave
These silver values as compared with those of the
Cymric Codes seem at first sight to be singularly
low. The Welsh cow, as we have seen, was Valued in
silver at three Saxon ounces, and the male and
female slave each at a pound of twelve ounces. The
Welsh value of the cow was roughly three times,
and that of the slave three and one third times, the
Irish silver value.
This Irish equation between cattle and silver
must surely have been made- at a time when silver
H

98 Irish Tribal Custom.
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.
An older Frofessor Bidgeway has caUed attention to an
with gold, interesting story from the life of St. Finian in the
Book of Lismore (fol. 24, b.c), in which an ounce of
gold was required for the liberation of a captive, and a
ring of gold weighing an ounce was accordingly given.
Now, if the ounce of gold is put in the place of
the cumhal or female slave, the gold values of the
Brehon monetary reckonings would be : —

Cumhal

=

576 wheat-grains

=

ounce

Bo or cow

=

192

=

stater or ox unit

Dairt heifer

=

32

=

tremissis

These gold values, if established, would take then-
place at once as foUowing 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 sUver 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 shaU 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

Currency of Brehon Laws. 99
smaUest silver unit was the screapall or scripulum.
And it has already been mentioned that the scripulum The
was also known as the denarius Gallicus, of which in^omf
24 went to the Boman ounce of 576 wheat- °™°j?anounces,
grains, as in the Brehon Laws, and that a score of *•«•. the
t 'Mina
ounces made the mina Italica of twice 5760 wheat- italica.'
grains. It is curious to find in a passage quoted by
Betrie1 from the Fodla Feibe in the Book of
BaUymote,2 a fuU and exact appreciation of the
number of wheat-grains in the scripulum and the
Boman ounce. The wheat-grains, according to this
passage, are to be taken from wheat grown on
typicaUy rich soil which produces ' the three
roots,' and 24 wheat-grains are the weight of the
' screapaU ' of silver, and 576 the weight of the
' uinge ' or ounce. Further it is stated that the fuU
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.5 Now this reckoning, not in
pounds, but in scores of ounces, has already been
aUuded to as, consciously or unconsciously, a reckon
ing in so many of the mina Italica. Betrie quotes a
passage from the 'Annals of the Four Masters' in
which this payment in scores is illustrated.4
A.D. 1029. Amlaff, son of Sitric, lord of the Danes, was
captured by Mahon O'Biagain, lord of Bregia, who exacted 1,200
cows as his ransom, together with seven score British horses and
three score ounces of gold and the sword of Carlus . . . and three
score ounces of white silver as his fetter ounces, and four score
cows for word and supplication, and four hostages to O'Biagain
himself as a security for peace and the full value of the life of the
third hostage.

1 Bound Towers of Ireland,
p. 219. 3 Fol. 181, b.b. This will be
inserted in Dr. Atkinson's vol. v.

of the Brehon Laws.
s In one MS. ' six score ounces.'
4 Petrie, Bound Towers of
Ireland, p. 214,
H 2

100

Irish Tribal Custom.

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 Boman ounces
of silver go back to a very early period.

St.
Patrick's ' pretium
hominis '
of ' seven
ancillse.'

V. THE IEISH COIRP-DIEE AND HONOUR-PRICE TEACED
FURTHEE BACK THAN THE BEEHON 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. Batrick, in his 'Confessions,' * treats the pretium
hominis as a well-known unit of value. These are
the words of St. Batrick : —

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

You know by experience how
much I have paid out to those
who were judges in all the regions
which 1 have often visited ; for I
think that I have given away to
them not less than the pretium
quindecim hominum.
Further, in the 'Tripartite Life' St. Batrick is
represented as putting the alternative between the
death of a transgressor ancTthe payment of seven
cumhals (' Aut reum morti aut rn. ancillas reddere
debet').2 The evidence for this coirp dire and its
payment in ancillse seems to be thrown back by these
passages to the fifth century.

1 Tripartite Life of St. Patrick, ii. p. 372.

Ibid. i. p. 212.

Evidence of Irish Canons. 101
Further, when we turn to the series of ' Canones Evidence
Hibernenses' published in Wasserschleben's work, Canones
Die Bussordnunqen der abendldndischen Kirche fr>. Hyber-
-to/>\ -i nenses.
I06), we find repeated evidence that the 'pretium
hominis,' or ' pretium sanguinis,' of seven ancillse,
was a weU-recognised unit of payment in eccle
siastical 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 '-->
hrtention. The next clause imposes for ordinary homicide
seven years' penance in bread and water.
Clauses 8 and 10 fix the ' prastium animas ' of
a pregnant woman (including woman and child) at
twelve ancUhe.
Clause 9 fixes for us the silver value of the Anciiia
ancilla and seems to show that it was the same as the vaiSu™n
silver value of the cumhal in the Brehon Laws. ^iver as
The clause is as follows : — Brehon

cumhal.

XII. Altilia * vel XIII. sicli (? XII.) prffitium uniuscujusque
ancillse. Ecclesiastical usage retained to some extent the
use of Boman phraseology. The siclus or sicilicus, as
we have already seen, was the didrachma of two
Boman argentei or silver drachmas. And as the
drachma after Nero was one eighth of the Boman
1 Altilia, i.e. fattened heifers, Skeat, sub voce ' heifer.'

102

Irish Tribal Custom.

ounce, so the siclus was one quarter. The Altiha
was the ' fattened heifer ' possibly of Irish custom.1
Twelve fattened heifers or sicli equalled therefore
three Boman ounces — i.e. the exact silver value of
the cumhal of the Brehon Laws. Here, therefore,
in these so-called Irish Canons the ancUla 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 : 2 —

Seven Sanguis episcopi vel excelsi
ancillae principis vel scribe qui ad terram
the price ermnaitur, si colirio indiguerit,
of aman's . ' "
i;fe emu, qui effudent, sapientes cruci-
figi judicant, vel vn. ancillas
reddat.

The blood of a bishop or high
prince or a scribe poured on the
ground, si colirio indiguerit,' the
' sapientes ' judge that he who
sheds it shall be crucified or pay
seyen-ancillaa.

Here, obviously, the vn. anciUas are the price of
the life of the criminal — the seven cumhals of the
coirp-dire. The canon adds the foUowing : —

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

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

These passages seem to have a curious corre-

1 The samaisc heifer of the
Brehon Laws being ^ oz., and the
dairt heifer £ oz., the fattened
heifer would naturally take the
middle place between them as £oz.
2 Wasserschleben^xfifers these
canons to th4_fifthjsentuiy Synod
under St. Patrick.

3 ' Si colirio indiguerit'
seems to be equivalent to the
Irish ' that requires a tent.' But
Dr. Atkinson informs me that
the Irish word literally means 'a
plug of lint.'

Evidence of Irish Canons. 103
spondence with the foUowing passage in the Brehon
Laws (sequel to the ' Crith Gabhlach,' iv. p. 363) : —
As to the shedding of a bishop's blood, if it reaches to the
ground as blood that requires a tent the guilty person is to be
hanged for it, or it is seven cumhals that are to be paid for his
sick maintenance and his eric.
If the wound be in his face, the breadth of his face of silver is
paid, and of the crown of his head of gold.
The canons go on to state that if the blood does
not reach the ground nee colirio indigeat the hand of
the striker is to be cut off, or the half of vn. ancillse
paid, if the act is done with intention ; if not, the
price of one anciUa is to be paid.
Another clause states that if a bishop be struck or
violently handled, without effusion of blood, half the
price of vn. anciUas is to be paid.
In aU these cases the fines are reckoned in a unit
of vn. anciUas or the hah of it. The cutting off of
the hand of the criminal is reckoned as equal to half
of vn. ancillae. The vn. ancUhe 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, stiU the price of vn. ancillo? is the
price of the life of the criminal. If the blood of a
priest is shed and reaches the ground, donee colorium
subfert, the hand of the criminal is to be cut off, or
half of vn. ancillae to be paid, if the act be inten
tional. If not intentional, the price of one anciUa is
enough. In title IV., Dejectione, after a clause stating that
he who ejects a poor man kills him, and he who

104

Irish Tribal Custom.

meets a person ready to perish and does not succour
him kills him, there foUows this clause : —

Si quis jecerit episcopum et si
mortuus fuerit, accipiatur ab eo
pretium sanguinis ejus L. ancillas
reddit, id est vn. ancillas unius-
cujusque gradus vel 1. annis peni-
teat et ex his accipiuntur vn.
ancille de jectione ejus.

' Pretium
sanguinis '
sevenancillas.

If any one ejects a bishop and
if he should be dead, let there be
received for him the price of his
blood, let him render fifty ancilke,
i.e. seven ancillae for each grade of
rank, or do penance fifty years,
and from these shall be received
seven ancillse de jectione ejus}

Here the ordinary ' pretium sanguinis ' or coirp-
dire is again clearly reckoned at vn. ancillae, 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 cut
ting 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 AiciU ' (iii. p. 349).
Half the eric-fine of every person is to be paid for a foot, a
hand, an eye, a tongue.
But inasmuch as the ' eric-fine ' in this case
might be taken by mistake to include the honour-price
as well as the coirp-dire, the commentary adds : —
He is entitled to half ' coirp-dire ' and half compensation
(aithgin) and full honour-price.
The loss of the hand was reckoned at half the
coirp-dire. The fuU 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

1 Compare this clause with
the ' Book of the Angel,' Tripar
tite Life, ii. p. 355. ' Item si non
receperit preedictum prsesulem in
hospitium eundem et reclusserit

suam habitationem contra ilium,
septem ancillas (cumala) sive
septem annos poenitentise simi
liter reddere cogatur.'

The ' Canones Wallici.' 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 Ei-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.1 Accordingly, in the following clause in the canons • Honour-
the bishop is put in the same position as a king, ^bishop
with what was practicaUy an honour-price of seven °gYgmg
ancilke : — ancillse.'

Patricius dicit : Omnis qui
ausus fuerit ea quas sunt regis
vel episcopi aut seribae furari
aut rapere aut aliquod in eos
committere, parvipendens dis-
picere, vn. ancillarum pretium
reddat aut vn. annis peniteat
cum episcopo vel scriba.

Patricius dicit : Every one
whoskall dare to steal anything be
longing to a king or bishop or scribe,
or to take away from or commit
anything against them heedlessly,
shall pay the price of seven
ancillse or do penance for seven
years with a bishop or scribe.2

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 ancillse, and the highest honour-price also
of seven ancillas. 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 OP THE
SO-CALLED 'CANONES WALLICI.'
It is perhaps possible with help from another set
of canons to obtain further evidence of Celtic usage

1 See Senehus Mor, i. p. 43 :
' Equal dire-fine for a king and a
bishop, i.e. equal honour-price to

the "rig tuath" and the bishop,
i.e. of the church of a " rig tuath." '
2 P. 141.

106 Irish Tribal Custom.
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.
The so- At the end of the Latin version of the Dimetian
' Canones Code of South Wales are appended as part of chapter
of perhaps ILK- several clauses which do not belong to the Code
**"* and are quite inconsistent with its provisions. These
Church, clauses are carelessly extracted, with variations, from
a set of canons which, from their thus partly appear
ing 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.1
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, CornwaU, 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 Wasser-
schleben and such competent authorities as Haddan
and Stubbs, to whose labours the student is so greatly
indebted. But that opinion is doubtfuUy expressed,
1 i. p. 127.

The ' Canones WaUici.' 107
and reference is made by them to the fact that two
of the three MSS. describe the coUection of canons
not as ' Canones WaUici ' 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 Brincipalities appear to have
become organised, i.e. to the period following St.
Batrick and St. Finian, during which the monastic
churches of South Wales were the channel of inter
course 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 Bomans 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 - ancillas ' and ' servi ' ; whilst in most others the
payments are made in libra? argenti or in libra? stagni,
or occasionaUy in solidi, undo?, and scripula.
The safer course maybe, therefore, to treat them.

108

Irish Tribal Custom.

not as a consistent and single set of canons, but as
excerpta from various sources.
The Following the eighth-century MS. as most likely
t0ahomi-aS to be correct in its text, the excerpta relating to

cide.

homicide are these

O.l. Si quis homicidium ex
intentione commiserit, ancillas
III. et servos III. reddat et securi-
tatem accipiat.
C. 2. Si quis judicio fuerit
competitus et prsestando verum
durus esse voluerit et ipsam inten-
tionern fuerit interfectus, ancillas
II. et servos II. reddi debere prseci-
pimus. Quodsi manum aut pedem
vel quemlibet membrumperdiderit
similiter duas partes praetii se
noverit accepturum.
C. 3. Si quis homicidii causa
fuerit suspicatus et non ei titulus
comprobandi, XL. et VIII. viris
nominatis, ex quibus XXIV. in ec-
clesia jurent eum esse veracem,
sic sine causa discedat. Quodsi
non juraverit, ancillas III. et
servos III. reddat et securitatem
accipiat.

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

C. 5. Si quis dominus servum
arma portare permiserit et in
genuum hominem occiderit, ipsum
et alium juxta se noverit redi-
turum.

Canon 1. If any one by inten
tion shall have committed homi
cide, let him pay three ancillse
and three servi and acquire safety.
Canon 2. If any one, being
brought to justice, tries to resist
the arrest and is slain in the at
tempt, we declare that two ancillse
and two servi shall be given for
him, but if he loses a hand or a
foot or any limb let him likewise
know that he shall accept two
thirds of the price.
Canon 3. If any one shall be
suspected of homicide, but there
are not means of proof (' titulus
comprobandi '), 48 men having
been named, of whom 24 shall
swear in a church that he is right
(' verax '), so he shall depart in
nocent (' sine causa ') ; but if he
[they ?] shall not have sworn he
shall pay three aneillce and three
servi and be free.
Canon 4. If a slave shall kill
a freeman and it shall be the
fault of the freeman, and he shall
have been slain by a cudgel, or
a hatchet, or a ... or a knife,
the homicide himself shall be
handed over to the parentes and
they shall have power to do what
they like with him.
Canon 5. If any master per
mits his slave to carry arms and
he kills a freeman, let him know
that he must hand over the slave
himself and another likewise.

The ' Canones WaUici.'

109

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

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

Canon 6. If a freeman shall
kill the slave of another without
fault (of the slave), he shall pay
two slaves to the master. But if
it were the fault of the slave,
another slave shall be restored in
his place.
Canon 12. If any one shall
have done homicide and shall have
sought flight, his parentes shall
have the space of fifteen days, in
order either to make their share of
restitution and remain safe, or
themselves quit the country.
After this, if the slayer himself
wants to return, he shall pay the
remaining half and be safe. But
if in the meanwhile he shall be
slain they shall cause the slave
[? slaves] and whatever they had
received to be restored.

Here, apparently, is a fairly complete and con
sistent set of canons relating to homicide. All the
payments are to be made in ancillce and servi. And
the payment for intentional homicide is apparently a
fixed payment of three ancillas 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 Goidehc
rather than Cymric connection. In the Brehon Laws,
as we have seen, the payments are made in cumhals
or ancillas, and the fixed wergeld or coirp-dire is
strictly speaking six ancillas, 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 ancillae, and the amount of the

Payments. of six
ancillce or servi
forhomicide.The slayer ¦
to pay
half and
theparentes
half

110 Irish Tribal Custom.
galanas is graduated according to rank, that of the
lowest and youngest tribesman being 60 cows,
nearly three times as great as the six anciUas and
servi of these canons.
The Irish The force of these suggestions of Irish connection
coirp-dire -g greatiy increased by the fact that nowhere else in
parentiy the collections of Canons and Fenitentials except in
to South these so-called ' Canones WaUici ' and the ' Canones
and tL Hibernenses,' and closely allied sources, do we find
churches ^e Payments expressed in anciUas. And it must be
from fifth remembered that the intimacy between Breton and
century. 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 WaUici ' 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 faU to recognise in
them evidence of influences at work which have broken
away partly from tribal usage, and which haU, not
from the primitive tribal instincts of Irish or Gallic
tribes, but from the side of Boman and ecclesiastical
law, to which the districts aUuded 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 Boman
law and Christian feeling, and how soon under these
influences the disintegrating process began in Gallo-

The ' Canones WaUici.' Ill
Boman districts, causing the solidarity of the kindred
to give way.
The solidarity of the kindred is partly recog
nised in these canons, but it is also partly ignored.
The 12th canon states, as we have seen, that if The
the murderer had taken flight his parentes had fifteen ^*ent o£
days allowed either to pay part and be secure, or liability of
themselves leave the country. What part ? The parentes
clause states that if the murderer wished to return "layer.
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 anciUae and servi.
If, in the meantime, the murderer was killed, pre
sumably 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
Boman 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 shaU find
was the case in Southern Gaul also, aheady 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 Irish Tribal Custom.
shall see, saved from death, but at the same time
handed over as slaves to the parentes of the slain. And
it is not difiicult to detect the lines of thought leading
to this result. In the ' Penitentials ' attributed to St.
Finian,1 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
The cleric injured person, should also do penance ; but a cleric
is to giv? wn0 possessed no property of his own could not
uimt0ethe Pay ^e composition (s. 9, p. 110). What, then, was
slain he to do in a case of homicide ? The penitential
person'sparentes. (s. 2o) lays down the rule : —
If any cleric kills his neighbour he must undergo ten years'
banishment with seven years' penance. If after ten years he
has acted rightly and is app_rosgd_J)y,the_tgstirnony of the abbot
or priest, let him be received back into his country and let him
satisfy the friends of him whom he has killed. Let him return to
the father or mother (of the slain), if alive, saying ' Behold I, as for
your son, will do whatsoever you tell me.' If he does not rightly
do this he is not to be received — ' in eternum.'
Then in s. 53 is added, ' If any one wiU 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 con
nected 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 com
piler of the so-called 'Canones WaUici' from the
books of the Bomans and Franks.
The connection, though traceable only through

1 Pmnitentiale Vimnicii, s. 23 ; Wassersohleben, p. 113.

Early Breton Evidence. 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 Goidehc portion of South Wales, of the fifth
and sixth centuries.
If it were suggested that the pretium hominis of c-onti-
seven ancillas might be an ecclesiastical invention Mshand
originating with the missionary churches of the ^1°^ as
Armorican districts of Gaul, we should still have to regardsthe
inquire why these churches differed so much from 'pretium
other Gallic churches. Everywhere else the^Church, and pay-
finding it impossible to get rid of a deep-rooted ™oiiite.
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 tribes
men or laymen. Even in these Celtic Canons the
clerical instinct, whilst apparently adopting the fixed
wergeld or coirp-dire for lajrmen, 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 ancillas — because of his
rank in the clerical hierarchy. He claimed too the
honour-price of seven ancillas — the same as that of the
Irish chieftain of a district for breach of his protec
tion 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 Irish Tribal Custom.
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 Boman 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 kill
ing 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).1 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 anciUa 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 ancillas ? So far, we find it prevalent only
in Ireland and in the Goidelic or non-Cymrie
districts of South Wales and Brittany. And the
evidence seems to carry it back "to the fifth
century.

Tripartite Life, p. 378 n.

Ancient Gallic Custom.

115

VII. THE WERGELD OP ANCIENT GALLIC CUSTOM.
THE EVIDENCE OF CiESAR.
There seems to be left but one possible further
source of evidence as regards the wergelds of the
Gallic tribes before the Boman conquest, viz. that of
Cassar. Speaking of the Druids, his words are
these : —
Illi rebus divinis intersunt, sacrificia publica ac privata pro-
curant, religiones interpretantur. Ad eos magnus adulescentium
numerus disciplinse causa concurrit, magnoque hi sunt apud eos
honore. Nam fere de omnibus controversiis publicis privatisque
constituunt, et, si quod est admissum facinus, si ccedes facta, si
de hereditate, si de finibus controversia est, iidem decernunt,
praemia pcenasque constituunt (vi. 13).
There is certainly nothing in these words, when
carefuUy considered, which indicates in the slightest
degree whether the Gallic wergeld was fixed, or
graduated according to rank. They amount to
this : — The Druids have cognisance of nearly all publio and private
controversies, and if any crime has been committed, if a murder
has been done, if concerning inheritance, if concerning boundaries
there is controversy, it is they who decide, and they fix the com-
' pensation and penalties.

Cassardoes not
state the
amountof the
Gallic
wergeld,but the
Druids
had juris-*
diction in
cases of
homicide.

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 Cassar's evidence on this particular point,

116 Irish Tribal Custom.
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 Caesar 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 l has argued with great
force that the statement of Cassar 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.
The . Now if a connection may be traced between
ofCiEsar the liability of the whole kindred for wergeld
i°a1nanbal and tne occupation of land by kindreds, with lesser
holding, 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 Cassar'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 finibws, it may fairly

1 Questions Historiqucs, pp. 105-117.

Early Gallic Evidence. 117
be suggested that some form of tribal land occupa
tion would at least be more consistent with what
Cassar recorded in the few sentences under review
than either complete individual or complete com
munal ownership would be.
But, passing from the passages already quoted to
Oassar'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 gaUing penances upon chief
tains and tribesmen wTho had committed crimes of
murder or incest. Still more surprised might w7e
weU 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 astomsliing 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

Irish Tribal Custom.

The posi
tion of
the Druids
paved the way
for clerical
pretensions.

The statement of Cassar 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, Cassar adds a few words to describe the
nature of the sanctions by which obedience to their
awards was secured .- —

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

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

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

His autem omnibus Druidibus
prreest unus, qui summam inter
eos habet auctoritatem. Hoc
mortuo aut, si qui ex reliquis
excellit dignitate, succedit, aut,
si sunt plures pares, suffragio
Druidum, nonnumquam etiam
armis, de principatu contendunt.
Hi certo anni tempore in finibus
Carnutum, quae regio totius
Gallise media habetur, considunt
in loco consecrate Hue omnes

Above all these Druids,
there is one who holds the chief
authority among them. To him,
if dead, if there be one of the
others excelling in dignity, he
succeeds, or if there be many
equal, by the suffrage of the Druids,
sometimes even by arms, they
contend for the ohieftainship.
At a fixed time of year they
hold session in a consecrated
place in the district of the Car-

Early Gallic Evidence.

119

Druides a bello abesse con-
suerunt neque tributa una - cum
reliquis pendunt : militiaa vaca-
tionem omniumque rerum habent
immunitatem. Tantis excitati
prsmiis et sua sponte multi in
disciplinam conveniunt et a paren-
tibus propinquisque rnittuntur.

undique, qui controversias habent, nutes, which region is held to be
conveniunt, eorumque decretis the centre of all Gaul. Here
judiciisque parent. . . . all, from everywhere, who have
controversies, assemble and sub
mit to their decrees and judg
ments. . . .
The Druids are accustomed
to keep away from war, nor do
they pay tribute with other
people ; they have exemption from
military service and a general
immunity. Induced by so great
advantages, many join their order
both of their own accord and
sent by parents and relations.
It is not necessary here to follow further these
famiUar 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 Boman conquest, in spite of
its tolerance to tribal religions, must have in degree
produced. The testimony of Benan 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 Boman 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 • Irish Tribal Custom.
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.
The tribes When it is considered how the organised and
toetheUSeii world-wide system of the Church, with its centre in
central Borne, continuing to some extent the prestige and the
power of ... ' ° ir T>
the civilisation of Imperial Borne, must have appeared to
and of the chieftains and petty kings of uncivilised tribes,
Home and ^ mav De recognised that in this respect also it
Church resembled to their eyes the power of the priesthood
took of the old religion with its centre at Chartres and
their . ° .
place. 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.

CHABTEB V.
THE WEBGELDS OF THE BUBGUNDIAN AND
WISIGOTHIC LAWS.

1. THE BUBGUNDIAN WEEGELDS.
It is not proposed to do more in this chapter than The result
very briefly to examine the laws of the Burgundians with
and Wisigoths with reference to the evidence they con- fn™an
tain with regard to the results of contact with Boman c.hri.stian
° civilisa-
and Christian civiUsation upon the solidarity of the 'ion-
kindred as shown in the payment of wergelds.
The remoteness of these tribes from any con
nection 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 dis
integration in tribal custom in the case of tribes
settling in countries with a long-established civilisa
tion superior to their own. In such cases tribal cus
tom, 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 Burgundian and Wisigothic Laws.
a.d. 501 and 516, and his reference to his ancestors
in his preface shows that, while he may have re
modelled the laws to meet altered circumstances, they
were in part based upon traditional customs of his
people.1 But his people were in a new position. Geo
graphically they were sharing with a population
still under Boman law the south-western part of the
Helvetian Valley — i.e. between Neuchatel and Geneva,
and a good part of the old country of the Sequani
on the Gallic side of the Jura.
The They seem to have come into this district not
method of , ,, ,
settle- altogether as conquerors, but in some sense as
ment" 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.2 It is generaUy understood
that this method more or less closely resembled the
Boman method of quartering soldiers upon a district.
The Burgundians therefore came into a district
with a mixed population of Bomanised Gauls and
Germans, already, after long residence and many
vicissitudes, living and settled under Boman law, and
regarded by the newcomers as Bomans.
Thus two sets of laws became necessary, one for
the Burgundian immigrants, the other for the old

1 Pertz, Bluhme's preface, p. I Bomanische Konigreich uom443
498. bis 532 n. Chr. chap. i.

".

Bindung's Das Burgundisch-

Eomana.'

Burgundian Wergelds. 123
inhabitants who were to continue under Boman
law. Now under the Boman law there was no wergeld- Homicide
And so in the Tit. II. of the Burgundian Lex Romana < Lex
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 re
ferred to judicial decision according to the Novellas
of Theodosius and Valentinian.
If the slayer had taken refuge in a church, quia
de preciis occisionum^ nihil evidenter lex Romana con-
stituit, the Burgundian lawgiver decreed that if a
freeman by a freeman should be kiUed, 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 foUows a clause, also of Burgundian
origin, fixing the payment by a freeman who has
kiUed a ' servus ' and fled to a church. The price is
to be paid to the lord of the servus on the foUowing
scale : For an ' Actor '  100 solidi
For a ' Ministerialis '  60 „
ploughman, or swineherd, or shep
herd, and other ' servi ' . . . 30 ,,
goldsmith  100 „
smith (iron)  50 „
carpenter . . . . . . 40 ,,
' This by order of the King.'
Now if from these clauses of the Lex Bomana under
which relate to the Boman population, we turn to Burgun-
the Tit. II. of the Burgundian law proper of Gunde- dian Law-
bald ' De homicidiis,' we may gather what the old

124 Burgundian and Wisigothic Laws.

Original
wergelds no longer
adhered
to.Homicide punished by death.

customary wergelds may have been, but at the same
time recognise how strongly Boman law and eccle
siastical influence had led Gundebald to break
through what to the Bomanised conscience seemed
to be the worst features of the system of tribal
wergelds. From Tit. IL, ' De homicidiis,' it appears that the
original wergelds were these :
Optimatus nobilis .... 300 solidi
Aliquis in populo mediocris . . 200 „
Minor persona  150 „
Pretium servi  30 „

Homicideby a slave.

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, shaU only be com
pounded for by the slayer's blood : thus overriding
tribal usage and introducing the Boman law.
The second clause enacts that if the homicide be
in self-defence against violence, hah 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 de
livered 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 shaU
have disappeared, his master shaU pay 30 sohdi — the
price of the slave — to the parentes of the slain. And
lastly, in clause 6, the parentes of the slain are in aU
these cases warned that no one is to be answerable
for the crime but the homicide himself, ' because as

Burgundian Wergelds.

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 The tra-
equation of cattle &c. with gold. If a Burgundian value of
or Boman ' ingenuus ' steals away a slave, horse, ammalB-
mare, ox, or cow, he is to lose his life, unless he
takes refuge in a church, and from the property of
the criminal the price of the stolen animal is, ' in
simplum,' to be paid to the person robbed, unless
the thing stolen can be found and restored — i.e. :

For the slave

. 25 solidi

For ' best horse '

• • 10 „

For moderate horse .

¦ 5 „

For mare ....

¦ • 3 „

For ox ... .

. 2 .,

For cow ....

1 solidus

Thus from these traditional values, retained even
under new circumstances by the Burgundian law, we
learn that the wergeld of the middle class of freemen,
' mediocres in populo,' of 200 solidi, was still regarded
as the equivalent of 1 00 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 Burgundian and Wisigothic Laws.
II. THE WEEGELDS OP THE LEX WIS1GOTHOEUM.
The laws of the Wisigoths are too Boman to be
taken as evidence of what may have been the ancient
tribal wergelds of the Goths.
The tribal Their rule extended to the Loire till they were
the Goths driven back to the Garonne by the Franks in the
by°Boman sixth century, and lasted in Spain and Aquitaine to
mflu- >7-q when it succumbed to Arab conquest. The
Wisigoths conquered a country already under Boman
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 Bomans. Their princes,
after the break-up of the Boman power, issued gold
coins — solidi and tremisses — in close imitation of
those of the Eastern Empire. Goth and Boman 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 prin-
', ciple of the solidarity of the kindred.
There is no scale of payments directly under the
head of homicide, and we are left to gather incident
ally what the wergeld (if it can be so called) may
have been.
In a clause1 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.

Lib. vii. Tit. iii. s. 3.

Wisigothic Wergelds.

127

And if they desired it, they might demand the com
position 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 The
homicides in L. VIII. Tit. IV. s
same date

161, of about the g^fuated

It enacted that injuries done by vicious jo0^1"8
animals, known to be such, were to be paid for sicut age of the
indi

es? de homicidiis by the ' constituted composition
compositio constituta — and then the foUowing scale is
given :

iridual.

Aliquis honestus

500 solidi

Ingenuus persona,

20 years old

and

up to 50

300
,,
Ingenuus persona
from 50 to 60
200
,,
Older than this
100
,,
Youths of 15 year
150
,,
„ 14 .,
140
,j
„ 13 „
130
,,
„ 12 „
120
5,
„ U „
110
,!
„ 10 „
100
,»
7 to 9
90
"
4 to 6
80
.,
2 to 3
70
„
1 year
60
J,
Daughter or wife from 15 to 40
250
!,
)> ji
40 to 60
200
,,
5, ,,
older .
100
,,
15, half the paymc
nt for a male
li
oerti, half-pa
It is impossible to look upon this scale as fuUy
representing ancient Gothic tribal tradition. And
when we turn to the title ' De ccede et morte hominum,'
128 Burgundian and Wisigothic Laws.

Innocenthomicideno longer
to be paid
for.

Homi cidesfleeing to
a church
to be
handed over as
slaves to
the family
of the
slain.

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 recog
nition 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.' *
Every man who killed another intentionaUy, 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 ques
tion had arisen, what was to be done with homicides
who took refuge in a church and committed them
selves 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 aU. 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

1 Lib. vi. Tit. v.

Dissolution of the Kindred. 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 compo
sition required was paid.
The successor of this king (653-672) dealt with Murder of
another point in which tribal instinct was at variance ^0 ^nsman
with Boman law. With the dissolution of the P"tnhished
kindred disappeared the reason and traditional death-
justification for the rule that there was no feud
and no wergeld within the kindred. Tribal custom
everywhere left the worst crimtu,pf all — murder of a
parent or a kinsman — withoutilaMress, at the same
time unpardonable and unasd led. It became,
therefore, needful to promulgagttleP edict that the
judex should punish the mure vol ve\ a kinsman by
death. And in this case, if th this eS^e no children,
aU the murderer's property d in thfto go to the
heirs and near relations of tjy-s of tlfdered person.
But if there were children c, afresh^er marriage,
innocent of their parent's i ca tentative, only of the
property was to go to the chilche Anglo-Si murdered
kinsman, and half to the innc view and/ren of the
parricide. *•- '--q'T ~p
If the murderer had fled, to the altar of a church
he was to be delivered up to the parentes or pro-
pinqui 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
K

130

Wisigothic Laws.

\
The
punishment had
become a
matter of
criminal
law and
was con
fined
to the
criminal
alone.

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. IL, 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. Thence
forth, 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 dewi".. His possessions were not to
go to them, but to/re?children or heirs of the criminal,
on the ground th/ ie punishment should in justice
fall alone upon j, winner, and not upon his innocent
family. Clearlyh thjast tie of tribal instinct securing
the solidarity /what dreds was now broken. It had
lost its ancientp in a cance. Murder had become the
crime of an in/otectio 1 against the State, and a matter
of criminal l/be pun , only survival of tribal feeling
seems to h^ett^e thisJiat, as some compensation to
the famibj^t whateveilered man, the murderer whose
life the Ch\ be punislaved was to become their slave.

CHAPTEE VI.
TBIBAL CUSTOMS OF THE FBaiNKS AND OF THE
TBIBES CONQUERED BY THE MEBOVINGIAN KINGS.

I. THE WERGELDS OP 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 difiicult 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. AU 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 Car-
bonaria Silva on the left bank of the Meuse to the the Lex
Salica had
Biver Loire. force.

Thedistrict
withinwhich

132

The Lex Salica.

The first
sixty-five
chaptersaboutA.D. 500,
but with
later al
terations.

Edict of
Childebert
II. A.D.
599 on
homicide discour
ages
receipt and pay
ment of
wergelds.

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.1
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
originaUy stood without modification.
Farticularly 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 repre
senting fully more ancient custom, could have been
left altogether unaltered after the decree of Childe
bert II. (a.d. 599), which may be translated as
follows : —
Concerning homicides we order the following to be observed:
That whoever by rash impulse shall have killed another without
cause shall be in peril of his life. For not by any price of redemp
tion shall he redeem or compound for himself. Should it by
chance happen that any one shall sttaop to (make or receive?)

Hessels and Kern, Codex x. Tit. lxi.

Edict of Childebert II. 133
payment, no one of his parentes or friends shall aid him at all,
unless he who shall presume to aid him at all shall pay the whole
of the wergeld, because it is just that he who knows how to
kill should learn to die. (Pertz, Leges, i. p. 10.)
The logic of this decree is curious. The slayer's
kindred were absolved by it from liability if they
chose to stand aloof. But, if they stooped to help
their kinsman at aU, 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, multiply
ing 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 stiU 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 The Lex Salica.
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 GaUo-Boman population amongst
whom they dwelt. And the whole character and
system of the ' Lex Salica ' was so much hke a state
ment of crimes and the composition to be paid for
- them, that it lent itself very easily to the interest of
the fisc.
The Lex In the sixty-five titles themselves there is direct
a tribes- evidence that tribal tradition and the solidarity of
break° tne kindred had once existed, and that in spite of
himself the edict the fisc was interested in their maintenance.
away
from his Thus by Tit. LX., De eum qui se de parentibla toUere
AnV6' vult, a door was thrown wide open for the Salic
gained0 tribesman to escape from the obligations of kindred.
fcy it- To secure this object he is to go to the maUus with
three branches of alder, and break them over his
head, and throw them on four sides in the maUus,
and declare that he withdraws from the oath, and the
inheritance, and everything belonging to the paren
tilla, so that thereafter, if any of his parentes either is
killed or shall die, no part either of the inheritance
or-of the composition shaU pertain to him, but aU 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 kins
man, who under this clause frees himself from the
liability to pay, and gives up his right to receive any

The ' De Compositione Homicidii.' 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 stiU possible,
though payment by the slayer's kindred was optional.
And so long as the occasional receipt of wergeld
was stiU possible, rules for its division might reason
ably remain in the Lex.
The same may perhaps be said of other clauses
included in the original sixty-five. Tit. LXIL,
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 : —

Tit.LXH., ' De com
positionehomi cidii.'

Si cujuscumque pater occisus
fuerit medietatem compositionis
filii collegant, et aliam medietatem
parentes quae proximiores sunt
tam de patre quam de matre inter
se dividant. Quod si de nulla paterna seu
materna nullus parens non fuerit,
ilia portio in fisco collegatur.

If any one's father be killed,
the sons are to take collectively
one half of the composition, and
the other half is to be divided
between the parentes who are
proximiores, both of the paternal
and maternal kindreds.
But if there be parentes on
neither side,1 paternal or maternal,
then that portion (i.e. the second
half) is to go to the fisc.

According to this clause, in the absence of the
parentes, their half share still has to be paid by the
kindred of the slayer, but again the fisc ^ gets control
of the lapsed portion which the parentes would have
taken had they been forthcoming.
Amongst some clauses said to be added to the Lex
Salica by Childebert I. (a.d. 515 to 551) is a very

1 Brunner (Sippe und Wer
geld, p. 31) prefer" the reading of
the other codiceA 'in either side,'

but the principle is the same ; the
fisc gets whatever share lapses,
whether it be \ or £.

136

The Lex Salica

Additionto the
Lex by
Childebert
I. A.D.
515-551in the
interest
of the
widow (?)
of the
person slain.

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 altera
tion was necessary in the division of the wergeld
amongst the kindred of the slain.1

Si quis hominem ingenuum
occiderit et ille qui occiderit
probatum fuerit, ad parentibus
debeat secundum legem com-
ponere ; media compositione films
habere debet. Alia medietate
exinde ei debet ut ad quarta de
leude ilia adveniat. Alia quarta
parsparentibus propinquis debent.
Id est, tres de generatione patris
et tres de generatione matris.
Si mater viva non fuerit, media
parte de leudae illi parentes inter
se dividant. Hoc est, tres de patre
proximiores et tres de matre. Ita
tamen qui proximiores fuerint
parentes de prsedictis conditioni-
bus prendant.
Et tres partes illis duabus
dividendam dimittat. Et nam et
illis duabus ille qui proximior
fuerit, ilia tertia parte duas partes
prendant, et tertia parte patre suo
demittat.

If any one shall have killed a
freeman and he who slew shall
have been ascertained, he ought
to make composition according to
the law to the parentes.
The son (Cod. 2 ' sons ') ought
to have half the composition.
After that, of the other half it
ought to be for her (? the mother),
so that she (?) comes in for a
quarter of thatleuda (or wergeld).
The other quarter ought to go
to the near parentes, i.e. three
[parentillaV] of the kindred of the
father and three of the kindred of
the mother.
If the mother shall not be
alive, the half leuda (wergeld)
those parentes divide amongst
themselves, i.e. the three proxi
miores [i.e. nearest parentes]
of the father and three of the
mother, but so that the nearest
parentes under the aforesaid con
ditions shall take [two thirds].
Three parts again it leaves to
be divided between the other two
[parentillse] . For also of those
two the nearest [parentilla] takes
two thirds and leaves one third
for [the parentilla of] the previous
ancestor.2

There must have been some special object in
this addition to the Lex. Brunner, following the

1 Hessels and Kern, Tit.
p. 412. Pertz, Legg. 11, 5.

ci.

* This translation of the final

clause does not materially vary in
meaning from that of Brunner,
Sippe und Wet toi, p. 34.

The Three '¦Parentilla?' 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 f
alone be mentioned, and not the father of the slain ? J
If this view may be accepted the object of the clause
becomes at once apparent.
Under Tit. LXIL 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 wer
geld 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. LXIL 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 Boman and
Christian influences had introduced other considera-
tions 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 The three
to do in interpreting the Brehon rules regarding m™'
divisions of the kindred) we may take the word ' son' f^^B
as meaning aU the sons, and insert the word parentilla? wergeld.
in explanation of the three proximiores, so as to under-
1 Brunner, Sippe und Wergeld, p. 34.

138 The Lex Salica.
stand them (as in the Brehon Geilfine division) to be
not three persons but three groups of kindred, then
these clauses become fairly inteUigible and consistent
with Tit. LXIL1
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
parentiUas may be is not very clear.
The father has been kUled and his sons take the
first half of the wergeld. The other half is taken by
the three nearer parentiUae. 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 descend
ants of the eight great-grandparents of the person '
slain.
The three But Brunner has pointed out that the division
tate^ into paternal and maternal lines of relationship
desoen6 begins with the slain person's grandparents ; so that
dants of the three proximiores on both sides should go back
great- x D
great- to the descendants of great-great-grandparents. He
parents, 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 state
ment 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

Sippe und Wergeld, p. 34.

The Three ' Parentilla?. ' 139
groups being reckoned as -|-f , the division was as
under : —
Eechtzweers (Geschwister Kinder), (paternal ^.
i.e. first cousins. [maternal &
Anderzweers (Ander-geschwister Kinder), j paternal -fa | l R
i.e. second cousins. {maternal & "itr
Derdelinghe (Dritt-geschwister Kinder), (paternal -fa
i.e. third cousins. {maternal BV
We may then safely, I think, follow Brunner's
cautiously expressed conclusion that it is very pro
bable that also in the Lex Salica under the words
' tres proximiores ' are intended relations belonging
to three separate parentilke.1
So far we have dealt only with the receivers of the The
wergeld. We have now to consider the wergeld from ^m the
the payers' point of view. When at last we turn to ^^li
the title ' De chrenecruda,' which deals with the pay- view-
ment 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 Bomanised 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

1 Sippe und Wergeld, p. 36.
' Es diinkt mir sehr wahrschein-
lich, dass auch in der Lex Salica
unter den ' tres proximiores '
Verwandte von drei verschiedenen
Parentelen gemeint sind.'
Later examples of division of

wergelds in other districts quoted
by Brunner show that the
division of the kindred into three
similar grades or groups was
prevalent also in Frisian and
Saxon districts.

140

The Lex Salica.

The title
'De chrene-
cruda.'

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 aU at once. To save
fhe 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 aU the discouragements
of the law, still choose to assist the slayer. Moreover,
the MaUus, it appears, still exercised jurisdiction
over the option.
This celebrated clause may perhaps therefore be
quoted as evidence for so much of ancient tribal cus
tom as to wergelds as the royal edict was unable to
extinguish aU 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 foUow-
ing translation may pass for our purpose (Tit. LVTH.) :

(1) Si quis hominem occiderit
et, totam facultatem data, non
habuerit unde tota lege conpleat,
xii juratores donare debet [quod]
nee super terram nee subtus
terram plus facultatem non habeat
quam jam donavit.

(2) Et postea debet in casa sua
introire et de quattuor angulos
terra in pugno collegere et sic

If any one shall kill a man
and, having given up all he pos
sesses, he yet shall not have
enough to satisfy the whole legal
requirement, he ought to give the
oaths of twelve co-swearers that
neither above the earth nor under
the earth he has any more pro
perty than he has already given
up. And afterwards he ought to
enter into his house and to gather
earth in his hand from its four

The ' De Chrenecruda.'

141

postea in duropullo, hoc est in
limitare, stare debet intus in casa
respiciens, et sic de sinistra ma
nual de ilia terra trans scapulas
suas jactare super ilium quem
proximiorem parentem habet.
(3) Quod si jam pater et fratres
solserunt, tunc super suos debet
ilia terra jactare, id est super tres
de generatione matris et super tres
de generatione patris qui proximi
ores sunt.

(4) Et sic postea in camisia,
discinctus, discalcius, palo in
manu, sepe sallire debet, ut pro
medietate quantum de composi
tione diger est, aut quantum lex
addicat, illi tres solvant, hoc est
illi alii qui de paterno generatione
veniunt facere debent.
(5) Si vero de illis quicumque
proximior fuerit ut non habeat
unde integrum debitum salvat ;
quicumque de illis plus habet
iterum super ilium chrenecruda
ille qui pauperior est jactet ut ille
tota lege solvat.
(6) Quam si vero nee ipse
habuerit unde tota persolvat, tunc
ilium qui homicidium fecit qui
eum sub fidem habuit in mallo
prsesentare debent, et sic postea
eum per quattuor mallos ad suam
fidem tollant. Et si eum in com
positione nullus ad fidem tullerunt,
hoc est ut redimant de quo domino l
persolvit, tunc de sua vita con-
ponat.

corners, and after this he ought
to stand on the threshold, looking
back into the house, and so from
his left hand throw across his
shoulders some of that earth
over him [? those] whom he has
nearest of kin.
But if father and brothers
have already paid, then over his
(relations) he ought to throw that
earth, to wit over three [paren-
tillae] of the kindred of the
mother and over three [parentilla]
of the kindred of the father who
are nearest of kin.
And likewise after that, in his
shirt, ungirded, unshod, stake in
hand, he ought to leap the fence,
so that for that half those three
shall pay whatever is wanting of
the composition or what the law
adjudges : that is, those others
who come of the paternal kindred
ought to do so.
But if any very near kinsman
shall be unable to pay the whole
amount due, then whoever of
them has more, on him again let
the one who is poorer throw the
chrenecruda, so that he may pay
the whole amount due.
But if not even he shall have
the wherewith to complete the
required amount, then those who
held him under oath ought to
produce him who committed the
homicide in the Mallus, and in
the same way again afterwards
four times in the Mallus hold him,
to his faith. And if no one take
up his faith concerning the com
position, i.e. to redeem him by
payment, then let him make com
position with his life.

Codices 3, 7, 8, 9 have ' de quod non.'

142

The Lex Salica.

The slayer
and his co-
swearersdeclarethat he
has given
up every
thing.

The family
gatheringto arrange
for pay
ment of
the rest
of the
wergeld.

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 MaUus 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 wiU 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 amatter 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

The ' De Chrenecruda.' 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. LXH. 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 propor
tions 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 parentiUse 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 appa
rently help them to pay it. The other part ought to
fall upon the three parentiUse nearest of kin on both
the paternal and maternal side.
So that Clause 3 becomes partly inteUigible. ' 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 parentiUse nearest of kin
of the mother's kindred and the three parentiUse
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 LXIL 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 originaUy not

144 The Lex Salica.
three persons next of kin, but the three parentilla?, i.e.,
according to Brunner, the descendants of the grand
parents, 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.
Having Be this as it may, the slayer has done what he
reSSpon-e could in throwing the responsibility upon his kindred.
Sn'his He knows not, perhaps, whether they wiU fulfil the
thedsfer ODUgati°n thus cast upon them. He has given up
leaps over everything he himself possessed, and now, in his shht,
pngirded, 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

The '¦De Chrenecruda! 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 dweU
upon it.
Lastly, Clause 6 brings the slayer, after all his if his
efforts and appeals to his kindred, face to face with notdpay,d°
the final result. Four successive times his co-swearers the sla7?
pays with
have brought him up to the mallus to hold him to his life.
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-grand
parents, 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. CL 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 cusr
L

146 The Lex Salica.
tom, the widow originally took no share in the wergeld
of her husband, not being a blood relation to him.
Position Further, as in the title De chrenecruda there
and her' e xs no mention of any share in the payment of wer-
kmdred. ggi^ falhng 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.
what It is not needful tofoUowthe speculations of various
became of ... .
the authorities as to what became of the homestead and
rights L landed rights abandoned by the slayer when he threw
the land, fae chrenecruda upon his kindred and leaped, ungirt
and unshod, over the fence of the inclosure. It is
begging the question to caU it his Grundstuck 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 gweiy,
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 doubt
less already a homestead of his own) would care to
succeed to the one left vacant. It is much more

The ' De Chrenecruda.' 147
likely that tribal superstition would leave the mur
derer'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.
FinaUy it must be remembered that in the tribal
stage of land occupation the value of land itself bore
a very smaU proportion to the value of the cattle
upon it. And so the ' Grundstuck ' 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, some
thing 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 The
payments, is stated in so many denarii and so many the free-"
solidi— 8,000 denarii, i.e. 200 solidi. And that the ^g
Frank or barbarian living under the Lex Salica was under,Salic law
the typical freeman is shown by the title De debili- 200soiidi.
tatibus,1 which fixes the payment for the destruction
of an eye, hand, or foot at 100 solidi. Half the wer
geld is the highest payment for eye, hand,, and foot
ever exacted by the Continental laws, and 100 solidi
1 Tit. xxix.
L 2

148 The Lex Salica.
certainly cannot apply to any grade of persons with a
lower wergeld than 200 solidi.
Tit. XLI. is as follows : —
Si quis ingenuo franco aut If any one shall kill a freeman
barbarum, qui legem Salega vivit, — a Frank or barbarian man who
occiderit, cui fuerit adprobatum lives under the Lex Salica — let
viii. M. den. qui fac. sol. cc. culp. him whose guilt is proved be
jud. judged to be liable for viii. M.
denarii, which make cc. solidi.
As this clause probably dates before the issue of
Merovingian solidi of diminished weight, the 200 solidi
of the wergeld may be taken to have been at the
date of the law 200 gold solidi of Imperial standard.
So that the wergeld of the Frank or the free
' barbarus living under the Lex Salica' originaUy, when
paid in gold solidi, was neither more nor less than
the normal wergeld of a heavy gold mina.
officials "We learn from clause 2 of the same title that if
had a
triple 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 Boyal
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 'Bomanus homo con-
viva Begis,' as 300 solidi, of the ' Bomanus homo
possessor ' as 100 solidi, and of the ' Bomanus tribu-
tarius ' in some texts 45, and in others 63, 70, and 120
solidi. In Codex 10 the 'Bomanus possessor' is
described as the man who in the pagus in which he
lives res proprias possidet.
The natural inference from these lesser wergelds

wergeld.

Division of Classes. 149
is that the Gallo-Bomans were not ' living under the
Lex Salica,' but under their own Gallo-Boman 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
Bomanus 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 interest- strangers
ing question. These laws, made after conquest and had only
settlement on once Boman ground, ought to be good Wergeias
evidence upon the tribal method of dealing with Eoman'us
strangers in blood: i.e., in this case, the Gallo-Boman ioo soiidi.
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 ' Bomanus ' of the laws was confined to

150 The Lex Salica.
the freedman who had been emancipated by process
of Boman law.1 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-Bomaris,
whether freedmen or Boman possessores, living under
Boman law on the other hand. We shall come upon
this question again when the Bipuarian 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-Boman and Bomanised neigh
bours. III. TRIBAL RULES OF SUCCESSION IN ' TERRA SALICA.'
The question of the payment of wergeld is now
generaUy 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.2 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 LLX.
De Alodis. It is the next title to the De

1 See his essay on this subject - Brunner, in his Sippe vnd
in his Problimes d'Histoire, pp. j Wergeld, shows this clearly, pp.
861 &c. 1-3.

The 'De Alodis.'

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 ap
proach it from a strictly tribal point of view, it wiU
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 Codes 1 of Hessels and Kern the The title
'De
clauses are as foUows : — Alodis.'

(1) Si quis mortuus fuerit et
filios non demiserit, si mater sua
superfuerit ipsa in hereditatem
succedat. (2) Si mater non fuerit et
fratrem aut sororem dimiserit,
ipsi in hereditatem succedant.
(3) Tunc si ipsi non fuerint,
soror matris in hereditatem
succedat. (4) Et inde de illis generationi-
bus quicunque proximior fuerit,
ille in hereditatem succedat.
(5) De terra vero nulla in
muliere hereditas non pertinebit,
sed ad virilem secum (leg. sexum)
qui fratres fuerint tota terra
perteneunt.

If any one shall have died and
not have left sons, if his mother
shall have survived let her succeed
to the inheritance;
If the mother shall not be
[surviving] and he shall have
left brother or sister, let them
succeed to the inheritance.
Then, if they shall not be
[surviving], let the sister of the
mother succeed to the inherit
ance. And further concerning these
generations, whichever shall be
the nearer, let it succeed to the
inheritance. But concerning land no in
heritance shall pertain to a woman,
but to the male sex who shall be
brothers let the whole land per
tain.

The last clause in Codex 10 (Herold's) is amplified
as foUows :

(5) De terra vero Salica in
mulierem nulla portio hsereditatis

Concerning, however, terra
Salica, let no portion of the in-

152

The Lex Salica.

transit, sed hoc virilis sexus
acqviret : hoc est, filii in ipsa
hsereditate succedunt. Sed ubi
inter nepotes aut pronepotes post
longum tempus de alode terrse
contentio suscitatur, non per
stirpes sed per capita dividantur.

heritance pass to a woman, but let
the male sex acquire it : i.e. sons
succeed to that inheritance. But
where after a long time dispute may
arise between grandsons or great-
grandsons concerning the alod of
land, let the division be not per
stirpes, but per capita.

The 1 alod

Now, in the first place, what is meant by the
embraced term alod? In the Lex Salica it occurs again in
inw016 Tit- SCIX. De rebus in alode patris, which relates to
tance— a dispute about the right to a certain thing, as to
cattle, &e. 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. sohdi.
From this clause the inference must apparently be
that the ' alod of the father ' was the whole bundle
of rights and possessions, personal as weU 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.1
There are titles k de alodibus ' both in the Bipu-
arian Law 2 and in that of the ' Anglii and Werini.' 3
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

1 Blumenstock, i. 260.

Tit. lvi.

Tit. vi.

The 'De Alodis.'

153

alod mainly consisted of cattle and slaves. In the it was an
title ' de alodibus ' of the Bipuarian Law, the heredi- ££$ral
tarv or ancestral character of the alod is emphasised inheri-
" r tance.
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.
Begarding, therefore, the ' alod ' as in some sense
a bundle of rights and property, let us try to con
sider 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 The
seen, daughters did not share in the landed rights of of females
the gweiy. They received instead of landed rights m0ddinca-
in the gweiy their gwaddol or portion, mostly, no tio°s .
doubt, in cattle, and they were supposed with it to their
marry into another gweiy, in whose landed rights
their sons were expected to share by paternity. If
women inherited landed rights at all, it was excep
tionally 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.1 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

favour.

1 The clause De reipus is very
important in regard to some of
these points. But the subject is

too difficult a one to be discussed
here.

154 The Lex Salica.
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 prevent
ing the application to it of the previous clauses.
The land Codex 1 does not describe the land as terra Salica.
was terra ^ lS 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 Sahca and the rest
not terra Salica.1 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 con
fine its meaning to the ' Haus und Hofiand' or the
'Vaterliches Wohnhaus,' as Amira2 and Lamprechts
would do, wrould be misleading. The homestead
of the chief of a tribal family holding, on terra
Salica, may, like the Boman viUa, have passed by

1 Guerard, on the other hand, i d'Irminon, i. p. 487. But he does
says : ' C'est l'alleu d'un Salien ; not seem to have noted the use of
ddfunt que la loi divise en deux ' land ' unqualified in the saving
parts : dans l'une est la terre clause of the first 4 codices.
salique, et dans l'autre la terre : 2 Erbcnfolge, &c, pp. 12-14.
non salique ; mais ces deux terres 1 Deutsches Wirtscliaftsleben.
sont egalement partie de la sue- i. p. 39.
cession du ddfunt.' Polyptique i

The ' De Alodis.' 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 Guerard 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 Guerard, in his careful
sections on the subject, admits three stages in the
evolution of the terra Salica : (1) ' 1' enceinte dependant
de la maison du Germain ; ' (2) 'la terre du manse
seigneurial ; ' (3) ' simplement la terre possedee en
propre, quelquefois donnpe en tenure.' l
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.

1 Polypt. d'Irminon, i.-p. 495.

156

The Lex Salica.

Terra
Salicawas land
heldunder the
rules of
the Lex
Salica and
subjectultimately to division
per capita
between
great-grandchildren.

The emphasis laid in the Lex Salica upon the
distinction in social status between persons ' living
under the Lex Salica ' and those living under Boman
law suggests that land held under the Lex Salica was
not held under the same rules as those under which the
' Bomanus 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
Boman 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 gwehauc ' or
family land of the gweiy.
We have seen that in the gweiy 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 gweiy. The fact of this right of redivision at
last between great-grandchildren was apparently
what held the family group together tiU 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

The 'De Alodis.' 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 gweiy, divisible, first between sons,
then between grandsons, and at last between great-
grandsons. But when among grandsons or great-grandsons contention
arises, after long time, concerning the alod of land, they [the
lands of the alod] should be divided, not per stirpes, but per
capita. The later the date at which this sentence was
added to the final clause of the ' de alodis,' the
stronger becomes the evidence of what ancient Salic
custom on this matter was.
Assuredly the object of these words is not to oiaus^nal
introduce a new principle. They obviously describe p™1?0'8.,
ancient Salic custom in order to protect it. And holding.
how could a division per capita amongst great-
grandsons take place unless, as in the Cymric gweiy,
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 betwreen
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 indivi-
duaUy contributed their share, seems to imply an
original solidarity of kindred, which must, wherever
it was fuUy in force, have been connected with a
corresponding solidarity in the occupation of land,
together with its complement, an individual owner
ship 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

The Lex Salica.

Distinc
tion between
land under Salic and
landunderRoman law.

If the foregoing considerations be accepted, may
we not recoghise in the term terra Salica, as at first
used, a meaning analogous to that which Brofessor
Vinogradoff has recently so briUiantly given to the
Anglo-Saxon term ' folc-land ' ? 1 In both cases surely
it was natural that there should be a term distin
guishing land still held under the rules of ancient
tribal custom from land held under the Bomanised
rules of individual landownership.
It is not necessary to do more than aUude here to
the various clauses of the Lex Salica from which the
existence of individual holdings is clearly to be in
ferred. 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 Sahc 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 Boman 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 hving
under Salic law to the interloper would have a
new meaning and become very natural if the con
flict between the two systems were involved. And
when we have reminded ourselves of these facts the
title De eum qui se de parentilla toUere cult, to which
allusion has already been made, which enabled the
tribesman, by the somewhat theatrical action of

English Historical Review, Janutirv 1893.

The Edict of Chilpene. 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-
Boman 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 Edict of
source of information which must not be overlooked AD* 501°
—viz. the Edict of Chilperic (a.d. 561-584).1 '584'-
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 Sahc settlements would be made
among non-Salic neighbours, and multiply the cases in
which even a Salic Frank might find himself less
securely surrounded hy 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 Boman 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

Hessels and Kern, Tit. 78 ; Pertz, Leg. ii. p. 10.

160

The Lex Salica

Admissionof female
succession
to prevent
Salic land
from passing
from the
family
group to
strangers.

interests must usually have become merged in the
general rights of the kindred, the vicini being kins
men. 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 aUows them to succeed
in certain cases so as to prevent the land, or, as we
should rather say, the landed rights, from lapsing to
the vicini.
Clause 3 is as follows : —

Simili modo placuit atque
convenit, ut si quicumque vicinos
habens aut filios aut filias post
obitum suum superstitutus fuerit,
quamdiu filii advixerint terra
habeant, sicut et Lex Salica
habet.

Likewise we will and declare
that if any one having vicini,
or sons or daughters, shall be
succeeded to after his death, so
long as the sons live let them
have the land as the Lex Salica
provides.

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

Et si subito filii defuncti
fuerint, filia simili modo accipiat
terras ipsas, sicut et filii si vivi
fuissent aut habuissent. Et si
moritur, frater alter superstitutus
fuerit, frater terras accipiat, non
vicini. Et subito frater moriens
frater non derelinquerit supersti-
tem, tunc soror ad terra ipsa
accedat possidenda. . . .

And if suddenly the sons
shall have died let the daughter
receive those lands as the sons
would have done had they been
alive. And if he [a brother] should
die and another brother should
survive, let the brother receive
those lands, not the vicini. And
if suddenly the brother shall die
not leaving a brother surviving,
then let a sister succeed to the
possession of that land. . . .

The Edict of Chilperic. 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.1
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 Analogy
custom, on a brother's death without children, his custom.
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 gweiy. 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 gweiy.2
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 re
ceived it.

1 See note in Hessels and j folge, p. 16 (Miinchen,1874).
Kern, and Amira in his Erben- I 3 See supra, pp. 26, 27.
M

162

The Lex Salica.

If the son die after 14 years of age and leave no heir, his
' argluyd ' is to possess all his da and to be in place of a son
to him and his house becomes a dead-house. (Ven. Code, i.
p. 203.) 1
The lapse of landed rights in family holdings to
the kindred was one thing. Their passing nut 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 'Bomani possessores,' had taken
places in the villa side by side with the tribesmen
living under the customa^ 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,

1 This is repeated, ii. p. 391.
' The argluyd takes him as a son,
and if he die receives his da unless

he leaves a son.' Up to 14 his
father was his ' argluyd.'

Ripuarian Wergelds. 163
and lastly, in default of kindred, stranger vicini
under certain conditions were admitted to the lapsed
inheritance.

IV. THE WERGELDS AND DIVISION OP CLASSES IN THE
' LEX RIPUARIORUM.'
The customs of the Bipuarian Franks as to wer
gelds, 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 Bipuarian ingenuus, like that Wergeld
of the Salic Frank or barbarian living under the Lex as under1'1
Salica, was 200 gold solidi, and 12 co-swearers were g^^6*
required to deny the homicide (Tit. VII.). soi°icfi°ld
Here again official position seems, as under the That
Salic law, to be protected by a triple wergeld. The official
grafio or comes, who was a fiscal judge, had a wer- threefold-
geld of 600 solidi (Tit. LIIL). The payment for one
in truste regis was also 600 solidi (Tit. XL).
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 Bipu
arian 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
M 2

164 The Lex Ripuariorum.
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 ' expeUed tiU 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 apphcation.
The words are these : —
¦* If the murderer shall be poor, so that he cannot pay at once,
then let him payjper tres decessiones filiorum.'
Has it really come to this, that since the Edict of
Childeric II. came into force the parentes are released,
and the descendants of the murderer, for three genera
tions, 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 fisc The ancient tribal tradition that within the family
takesthe there could be no feud or wergeld, but exile only, was
&«*- sti11 apparently in force. In Title LXIX. there is a
dretl- clause which enacts that if any one shaU 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. Barricide under any system of criminal law

Division of Classes. 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 Bipuarian 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 Distinc-
of the ingenuus with a wergeld of 200 solidi was between
the Francus or barbarus living under Salic law. \^°^s
The ' barbarus ' who lived under Salic law was no "nder. Salic law
longer a stranger ; he had in fact become a Frank, and those
As we should say, he had been naturalised. Hence under
there was no inconsistency in the apparent occasional ^X,
indiscriminate use of the words ' Francus ' and y"*™ i
treated as
' ingenuus.' They meant the same thing. But there strangers
is nothing to show that the ordinary Gallo-Boman
was included under the term ' barbarus who lived
under Salic law.' On the other hand, we find him
living under the Boman law.
In considering the method of dealing with people
of so mixed a population as that of the Bipuarian
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 popu-

166

The Lex Ripuariorum.

Strangers
of allied
tribeshave wergelds accordingto the law
of their
birth, but
if they
cannot
find com
purgators must go
to the
ordeal.

lation as that of the Bipuarian 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 stiU
founded upon ' difference of blood.' At aU events
it is worth while to examine the additional evidence
afforded by some clauses in the Bipuarian laws.
In Tit. XXXI. it is stated that Franks, Bur
gundians, Alamanni, and others, of whatever nation,
living in the Bipuarian country, are to be judged and
dealt with, if guilty, according to the law of the place
of their birth, and not by the Bipuarian 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.' 1
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

1 Sohm, in his preface to the I
Lex, in Pertz (dated 1882), p.
188, concludes that this clause
and clause 36 must be referred
to the sixth century. There is
a Formula in Marculf's collec
tion in which instructions are

given to a newly appointed
official, inter alia, to judge Franks,
Bomans, Burgundians, and those
of other nations ' secundum lege
et consuetudine eorum ' • (Marc.
Form., Lib. i. 8.

Division of Classes.

167

favour of tribes more or less nearly allied in blood with
Franks, viz. the Burgundians, Alamanni, Bavarians,
Saxons, and- Frisians, resident in the Bipuarian district,
as contrasted with the Romanus, who surely must be
the Gallo-Boman.
In Title XXXVI. the foUowing wergelds are stated,
the slayer being a Bipuarian in all cases : —

A stranger

. Frank

. 200 solidi

, ,»

Burgundian

. 160 „

, »j

. Bomanus

. 100 „

> »»

. Alamann \

» >»

. Frisian 1

. 160 „

» >»

. Bavarian f

» ,i

. Saxon /

Thus the Boman stranger is placed in the lowest Wergeld
grade. His wergeld is only 100 solidi — half that of Ecmanus
the Bipuarian or Salic Frank — whilst those tribes insteBado{
nearer in blood to the Frank are classed together with ?oo or
° 160 solidi.
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.1
In this connection the view of M. Fustel de Cou-
langes, that the term ' Bomanus ' is confined to the
libertus freed under Boman law, hardly seems natural.
The evidence seems to show that the man freed under
the formalities of Frankish law thenceforth lived under
Sahc law and became a Frankish freeman with a
freeman's wergeld of 200 solidi, whilst the man who

1 In the Burgundian Law the
wergeld is 150 solidi ; in the
Alamannic Law, 160 solidi ; in the

Bavarian law, 160 solidi. That
this was also the wergeld of the
Frisian and Saxon see infra.

168

The Lex Ripuariorum.

Positionof the
freedmanor denari-
alis under
Frankish law. His
wergeld200 solidi.

became a freedman under process of Boman law
thenceforth lived under Boman law, and became a
Boman freeman— -a Bomanus — with a wergeld of
only 100 solidi. The inference that the differ
ence in status was the result of difference in blood is
• not altered by the fact that the social status awarded
to the Gallo-Boman 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-Boman 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 Bipuarian laws. Tribal custom
had to meet in Burgundy and the Wisigothic district
with Boman law and Boman institutions stiU com
paratively in their full strength. Marriages with the
Gallo-Boman 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-
Boman on equal terms.
Bassing 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 Bipuarian law, taking the cases of the Frankish
freedman and the Boman libertus separately.
In Tit. Vin. the payment for slaying a servus is
36 solidi. In Tit. LXIL, if any one makes his servus
into a tributarius or a litus and he is kiUed, 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.

Division of Classes. 169
The tributarius or litus has gained but one step
up the ladder of Frankish freedom. But the de
narialis, 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 But tin
so, in another sense he has by no means done so. afcee*
Under tribal custom he would not attain to full tribal j^'ha's
rights tiU a kindred had grown up around him. So "° ehiJ-
° ° - . . dren the
under Tit. LVII. the ' homo denarialis,' notwithstand- fisc is his
ing his wergeld of 200 solidi, is recognised as having
no kindred. (s. 4) If a ' homo denariatus ' shall die without children he leaves
no other heir than our fisc.
And in full accord with this statement is the
foUowing clause in the ' Capitulare legi Bipuarise
additum' of a.d. 803.
Homo denarialis non ante haereditare in suam agnationem
poterit quam usque ad terciam generationem perveniat.
So that more of tribal custom stiU prevails in his
case than at first appears. Only in the third genera
tion are fuU rights of inheritance secured to his suc
cessors. If now we turn to the libertus under Boman law, Wergeld
Tit. LXI. states that if any one shall make his servus in^tus
into a libertus and Boman citizen, if he shaU commit j^^
a crime he shall be judged by Boman law, and if he law i°°
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 The Lex Ripuariorum.
denarialis and the Boman libertus seem to be treated-
alike, notwithstanding the difference of wergeld.
Turning to another matter, the Bipuarian 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
Wergelds the class of servi, or men of the king or of the Church,
clergy, and or liti, or ingenui. If ingenui, they were to be com-
°mehn.'r pounded for with 200 solidi. Then the wergelds of
the higher clergy are stated as foUows : —
Subdeacon .... 400 solidi
Deacon  500 „
Priest  600 .,
Bishop  900 „
And there is a long clause De Tabulariis (Tit.
LVIII.) providing that servi may be made under
process of Boman law tabularii of the Church, so that
they and their descendants shaU be and remain
servants of the Church, and render the proper ser
vices 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 foUows : —

Theclause ' De
alodibus.'

Si quis absque liberis defunctus
fuerit, si pater materque super-
stites fuerint in hereditatem suc-
cedant. Si pater materque non fuerint,
frater et soror succedant.

If any one shall have died
without children, if father and
mother survive they shall succeed
to the hereditas.
If there are not father and
mother, brother and sister shall
succeed.

Value of Animals. 171

Si autem nee eos habuerit,
tunc soror matris patrisque suc-
cedant. Et deinceps usque ad
quintam genuculum, qui proxi-
mus fuerit, hereditatem succedat.
Sed cum virilis sexus extiterit,
femina in hereditatem aviaticam
non succedat.

But if he has not these either,
then the sister of the mother and
the sister of the father shall suc
ceed. And further, up to the fifth
knee, whoever is nearest shall
succeed to the inheritance.
But as long as the male sex
survive, a woman shall not suc
ceed to the hereditas aviatica.

All that need be remarked regarding this title is,
first its close resemblance to the clause ' de alodis '
in the Lex Salica and the confirmation given by the
phrase ' hereditas aviatica ' to the family character
of the ' alod,' and secondly that it seems to belong
to the time when female succession was favoured.
Whether the ' hereditas aviatica ' included the
whole alod or only the land of the alod, on failure of
male heirs, females wrere 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 : —
The ox, horned, seeing, and sound, for . .2 solidi The tra-
The cow, horned, seeing, and sound, for [3 or] 1 solidus ditional
The horse, seeing and sound, for . . .6 solidi va4ue °f
The mare, seeing and sound, for . . . 3 „ in
And this is foUowed by a final clause which is wergelds.
found only in some of the manuscripts and which is ^,g1egeld
probably an addition made under Charlemagne : — of 200
r J ° solidi =
If payment shall be made in silver, let 12 denarii be paid for 100 oxen.
the solidus, sicut antiquitus est constitution.
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
stiU, in the Bipuarian district at all events, a normal
wergeld of 100 oxen.

172

Alamannic and Bavarian Laws.

Thewergeldsof the
earlyAlamannic ' Pac-
tus,'

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 c Bactus,' 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,1 the wergelds were as
follows : — '

and of the
later ' Lex
Hlotharii.'

Baro de mino flidis

. 170 solidi (? 160)

Medianus Alamannus .

. 200

))

Primus Alamannus

. 240

fl

for women : —

Femina mino flidis

. 320

)»

Mediana

. 400

))

Prima Alamanna .

. 480

)»

These wergelds correspond very closely in some
points with those of the Burgundian laws and should
be compared with them.2
The wergeld of women was double that of men
of the same class. In the Lex Salica and Lex Bipu-
ariorum, women were paid for threefold.
In the Lex Hlotharii, s. LXLX., the wergelds are
stated as follows : —
If any freeman (' liber ') kills a freeman, let him compound for
him twice 80 solidi to his sons. If he does not leave sons nor has
heirs let him pay 200 solidi.

1 See Merkel's preface to the
laws in Pertz, p. 14.
2 In the Burgundian laws
the division is into ' optimatus '

with a wergeld of 300 sol., ' medio-
cris ' with 200 sol., and ' minores '
with 150 sol.

Alamannic Wergelds. 173
Women of theirs, moreover, always in double.
The medius Alamannus, if he shall be killed, let 200 solidi be
paid to the parentes.
It is not clear that there has been any change in
the wergelds since the date of the ' Bactus.'
The wergeld of the medius Alamannus, 200 solidi, The
is the same as before. That of the liber, 160 solidi, liso^oiidi
seems to be the same as that of the baro de mino ^hthe
flidis in the ' Bactus.' It is also the wergeld of the statement
. . m 'he
Alamannus according to the clause mentioning Ripuan'an
strangers in the Bipuarian law. The use of the term
' medius Alamannus ' seems to imply that there should
be a primus Alamannus as in the ' Bactus.' 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 XL VI., 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 kiUed.
This rule is the same in the Salic and Bipuarian 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.
If he cannot recall him let him pay for him with a wergeld to Wergeld of
the parentes. That is twice 80 solidi if he leave an heir. Bui; 200 solidi
if he does not leave an heir let him compound with 200 solidi. ."? r
The explanation must be that if the lost kinsman slain.
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

Alamannic and Bavarian Laws.

Wergeld
¦of women.

The freeman's wergeld of
160 solidi
under
Bavarianlaw.

Higher wergelds
of certain
families.

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 ' Bactus,'
pointing back as it appears to earlier custom, seems
to show that the Lex as well as the ' Bactus ' may
in the matter of wergeld be traced to Alamannic
rather than Frankish sources.
In both the ' Bactus ' 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 au
exception was made to the rule.
Whilst a woman is unable to defend herself by arms, let her
receive a double composition ; if, however, in the boldness of her
heart, like a man, she chooses to fight, her composition shall not
be double.
In titles XXIX. and XXX. of the Alamannic law
it is enacted that if a man be slain in the curtis of the
Dux a threefold wergeld must be paid, and that if the
messenger of the Dux be killed within the province
his triple wergeld must be paid.
In the Bavarian law the wergeld of the freeman
is stated to be 160 solidi, thus : —
If any one kill a free man (' liberurn hominem ') let there be paid
to his parentes, if he have any, or if he have no parentes to the
Dux or to him to whom he was commended whilst he lived, twice
80 solidi : that is, 160 solidi. (Tit. IV. ^. 28.)
There are no wergelds mentioned in the Bavarian
law corresponding to those of the medius Alamannus
and the primus Alamannus of the Alamannic laws.
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

Bavarian Wergelds. L75
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 Bipuarian 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 Bipua
rian 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 Wergelds
the freedman and the servus, and it is worth while to freedman
dwell a moment on the position assigned to them as servus1.6
compared with the ordinary freeman.
There are three titles headed as under : —
Title IV. De liberis, quo modo componuntur.
„ V. De liberis qui per manum dimissi sunt liberi, quod
frilaz vocant.
„ VI. De servis, quo modo componuntur.
These clauses relate to injuries as well as to homi
cide. 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, Payments
hand, or foot, the difference is, roughly speaking, hana^or
doubled. The payment for the liber is 40 solidi, £££™he
for the freedman 10 solidi, and for the servus 6 solidi wergeld.
(? 5 sol.). And these payments are seemingly intended
to be one quarter of the respective wergelds for

176 Alamannic and Bavarian Laws.
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.
Bavarian The wergelds of the Bavarian laws may therefore
wergelds. b(J thug stated ._
Ducal family (4 fold) . . 640 solidi
Families next in honour . . 320 „
Liber  160 „
Stranger  100 „
Freedman  40 „
Servus  20 „
And all these solidi were gold solidi of Imperial
or Merovingian standard, it does not matter much
which.
No The crime of homicide within the near famUy was
within^he dealt with in the Alamannic law in conformity with
family. ancient tribal custom. There was no wergeld in such
a case. If any man wilfully kills his father, uncle, brother, or matemai
uncle (avunculus), or his brother's son, or the son of his uncle or
maternal uncle, or his mother, or his sister, let him know that he
has acted against God, and not fulfilled brotherhood according
to the command of God, and heavily sinned against God. And
before all his parentes, let his goods be confiscated, and let
nothing of his pertain any more to his heirs. Moreover, let
him do penance according to the Canons. (Tit. XL.)
Once more in these laws the parricide (the fisc
having taken his property) goes free, but for the
penance required by the Canons of the Church.
As regards the wergelds of the clergy in the

Wergelds of the Clergy. 177
Alamannic law the Church seems to claim triple Wergelds
penalties. The wergelds of the clergy are as follows, clergy.
according to the Lex Hlotharii (XL to XVII.) : —
Bishop as that of the Dux or Rex.
Priest, parochial  600 solidi
Deacon and monk  300 „
Other clerics like the rest of their parentes.
Liber per cartam (the Bipuarian tabularius) . . 80 „
The free colonus of the Church as other Alamanni.
According to the Bavarian law (Tit. I. ex.) 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 tiU 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 The wife's
an interesting clause which throws some light upon tance
the position of married women. toherack
(XCV.) If any woman who has a paternal inheritance of her own, no
after marriage and pregnancy, is delivered of a boy, and she her- children
self dies in childbirth, and the child remains alive long enough, born alive.
i.e. for an hour, or so that it can open its eyes and see the roof and
four walls of the house, and afterwards dies, its maternal inheri
tance then belongs to its father.
This is natural, but it seems to show that if the
child had been born dead and the wife had died
without children her paternal inheritance would have
gone back to her kindred and not to her husband.
In the absence of other evidence this is perhaps
enough to show that in accordance with tribal custom
N

178 Alamannic and Bavarian Laws.
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.
Tra- Lastly, there are clauses in the same Liber secundus
value of which declare the value of the solidus in equation with
cattle -j
stated in Cattle.
gold
tremisses. LXXX. Summus bovus 5 tremisses valet. Medianus 4 tre
misses valet. Minor quod appreciatus fuerit.
LXXVII. Ilia mellissima vacca 4 tremisses liceat adpreciare.
Ilia alia sequenteriana solidum 1.
These clauses show that the solidi in which the
wergelds were paid were gold solidi of three tre
misses. In the Bipuarian 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 Bipuarian liber,
200 solidi, was reaUy 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 reaUy a
wergeld of 120 oxen ; and the 160 solidi of the wergeld
of the baro de mino flidis of the ' Bactus,' 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.

CHAFTEB VII.
TBIBAL CUSTOMS OF THE TBIBES CONQUEBED BY
CHABLEMAGNE.

I. THE EFFECT UPON WERGELDS OF THE NOVA MONETA.
We have reached a point in our inquiry at which it The nova
becomes necessary to trouble the reader with fur- charie-°
ther details concerning the changes in the Frankish masne-
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 construc
tion, 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 a change
was in the first place a change from a gold to a to°snver.
silver currency — i.e. from the gold currency of
Merovingian solidi and tremisses to the silver cur
rency 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 —
N 2

180

Tribes conquered by Charlemagne.

Merovingian
kings first
used and
thenimitatedImperialcoin.

Thedenarius
of the
Salic law
first the
scripulum and then
the Mero
vingiansilver tremissis
of28-8 w.g.

the tremissis. And the only question was whether
the solidi and tremisses were of Imperial or of Mero
vingian 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 iUustration of this to the fact that in the
tomb of Childeric at Tournay were found no Frankish
coins, but a large number of Boman coins, gold and
silver, of dates from a.d. 408 to those of the contem
porary Emperor Leo I. (457-474). And for proof
that these Boman coins were afterwards imitated by
Merovingian princes M. Maurice Brou had only to
refer the student ' to every page ' of his catalogue of
' Les Monnaies Merovingiennes.' x
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 GaUicus.' 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

Introduction, p. iv.

The 'Nova Moneta: 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 cur
rency, over a world-wide Empire such as Charlemagne
had in view, and with which at last, when adopting
the title of Emperor, he had practicaUy to deal.
The changes he made in the currency were in
timately 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 charie-
tremissis and silver denarius from the Merovingian or\ con-
standard of 28-8 to the Imperial standard of 32 \™^ot
wheat-grains was probably the result of his conquest Iai^d the
of Italy. He seems to have arranged it with the, Bope, silver
for they issued silver denarii of the higher standard t0 the
with the impress of both their names upon them.1 g^ndard
It was natural that he should wish his coinage to of 32 w-g-
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

1 Martini, Metrologia, sub I Numismatique du Moyen Age,
Roma.' See also Traite de \ par A. Engel, vol. i. p. 222.

182 Tribes conquered by Charlemagne.
of tribal peculiarities and greater uniformity in legal
provisions and practice.
The Lex To mention one instance suggested by our pre-
stiii in vious inquiry, we have noticed how the extension of
Franks°r Frankish rule in Gaul from the Loire to the Garonne
And its increased the difficulties of maintaining two laws as
holdings to land. Strangers under Boman law, as in the ' de
extinct, migrantibus,' one by one were settling among Franks
holding alods or family holdings of terra Salica.
Extended conquests reversed the process, and in con
quered provinces immigrants living under Sahc law
became strangers amongst vicini living under Boman,
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. 803,1 de exercitu pro-
movendo, 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 suffi
ciently general to be taken as the typical form of
landholding. In a.d. 807 2 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

Pertz, p. 119. * Pertz, p. 149.

The ' Nova Moneta.'

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, aU 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 posses
sion of so many mansi, de proprio suo, was the
prevalent form of landownership. So that, although
the lex Salica remained stiU in force, the number of
Franks living under it seems by this time to have
borne a very small proportion to those hving under
Boman and other laws.
Family holdings under the Lex Salica were, how
ever, probably not quite extinct. In the ' Capitula
generalia ' of a.d. 825 x was inserted the following-
clause providing speciaUy for family holdings, which
may possibly have been holdings of terra Salica,
though it is not so directly stated.

De fratribus namque qui simul
in paterna seu materna hereditate
communiter vivunt, nolentes
substantiam illorum dividere, hac
occasione, ut unus tantum eorum
in hostem vadat, volumus ut si
solus est vadat : si autem duo
sunt similiter: si tres fuerint
unus remaneat: et si ultra tres
numerus fratrum creverit, unus
semper propter domesticam curam
adque rerum communium ex-
colentiam remaneat. Si vero
inter eos aliqua orta fuerit con-

Concerning brothers who
together live in common in the
paternal or maternal inheritance,
unwilling to divide their substance,
when occasion comes that one of
them only should go in hostem,
we will that if there be one only
he should go, and if there be two
the same: if there be three let
one remain ; and if the number
of brothers grows to more than
three, let one always remain on
account of domestic care and to
attend to their common concerns

1 Hludowici et Hlotharii Capitularia, Pertz, p. 251

184

Tribes conquered by Charlemagne.

Thecurrency of the Lex
Salica
only a
local one.

The Romandrachmaor
argenteusof 72 w.g.
the silver
denarius
of the
Empire.

tentio, quis eorum expeditionum But if among them any conten-
facere debeat, prohibemus ut tion shall have arisen which of
nemo illorum remaneat. In aetate them ought to go on the expedition
quoque illorum lex propria ser- we prohibit that any one of them
vetur. Similiter et in nepotibus shall remain. During their lives
eorum hsec conditio teneatur. also let the lex propria be pre
served. In the same way let this
I condition be kept to even among
I their grandsons.
When we reflect that the Franks living under the
Lex Salica must have thus sunk into a smaU 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 Sahca, with its solidi of
40 denarii, was, as has been said, after aU a local one.
And outside the old Frankish boundary, in the Wisi-
gothic region, as well as probably in Italy, the Boman
currency or local modifications of it apparently more
or less prevailed. Ecclesiastics, as we have seen,
even Alcuin himself, still used the terms of Boman
currency in writing on monetary matters to their
friends outside the Empire.
To them the denarius was stiU the Boman
drachma of 72 wheat-grains of silver, commonly
caUed the argenteus, in contrast to the gold solidus or
aureus. Gregory of Tours, when he has occasion to men
tion monetary payments, speaks of aurei, tiientes,
and argentei. In one story he speaks of solidi,
trientes, and argentei.1

1 De Mirae. S. Martini, 1. i. c.
31. Mention of the aureus occurs
twenty-four times in the index

to his works. Mention of trientes
occurs twelve times, and of
argentei five times.

The ' Nova Moneta.

185

Further, in a supplement to the laws of the
Wisigoths * 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 Mero
vingian solidus but that of Constantine. It then states
that the ' dragma ' of gold = ' xh 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.2

Dragma octava pars uncias
est et denarii pondus argenti,
tribus constans scripulis.
Solidus apftd Latinos alio
nomine ' sextula ' dicitur, quod
his sex uncia compleatur ; hunc,
ut diximus, vulgus aureum
solidum vocat, cujus tertium
partem idco dixerunt tremissem.2

The drachma is the eighth part
of an ounce, and the weight of
the silver denarius containing
three scripula.
The solidus with the Bomans
is otherwise called the sextula
because it is one sixth of the
ounce ; hence, as we have said,
the vulgar call the solidus the
aureus, the third part of which
is called the tremissis.

Thus the solidus was the typical gold unit or
aureus, and the drachma was the silver denarius or
argenteus. It is remarkable that at a ratio of 1 : 10 twelve Twelve
Wisigothic or Boman argentei or drachmas of silver 0f silver"^
equalled exactly in wheat-grains the Merovingian ^^0-
gold solidus current on the Frankish side of the vingian
o , gold
Garonne or the Loire. solidus.

1 In some codices placed at
the end of Lib. xii., Tit. ii. See
edition of Walter (1824), p. 669.
2 ' Ex Isidori Etymologiarum
Libris, c. De ponderibus.' Hultsch,

ii. 113. 3 Twelve argentei (12 x 72
w.g.) = 864 w.g., or at 1:10 the
Merovingian solidus of 86-4 w.g.

186 Tribes conquered by Charlemagne.
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 wer
gelds and other payments under its provisions.
The silver The practice apparently had already grown up
12 silver of reckoning 12 of the silver tremisses as a solidus

*&

akeady^in °f silver, twenty of which went to the pound of 240
use m pence, without, however, any pretence .being made
accounts, r .
as^of that this solidus of twelve silver pence was to be
of silver of reckoned as equal to the gold solidus in making
240 pence. payments_ In the ' Capitulare Liftinense ' of a.d. 743 1 a pay
ment 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 sohdi 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
drachmae, but 240 drachmae wTould make far more
than a pound. And by an edict of a.d. 765 2 Bippin
had enacted that out of a pound of silver not more
than 22 solidi were to be made, one of which was

1 Pertz, p. 18. - Pertz, p. 31.

The ' Nova Moneta.'

187

to go to the monetarius, and this clearly forbids
the supposition that the solidus could be of twelve
drachmas. The pound would contain only eight such
solidi. Another Capitulare of a.d. 779 x proves that the
twelve denarii were Merovingian denarii of 28'8
wheat-grains.2 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.3
There was nothing very remarkable in this rais- The
ing of the silver denarius from 28 ¦ 8 to 32 wheat- the nova
grains. It was merely adopting the Imperial standard. ^"240
But the extraordinary thing was that Charlemagne |™°eof=
seems to have thought that he could, by law, 7680 w.g.
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

1 Pertz, p. 39.
2 In this Capitulare three
grades of payments are stated, a
pound, a half-pound, and five
solidi. Five solidi in this scale
shouldbe \ lb., and in wheat-grains
the scale would be 6912, 3456,
and 1728. 1728 wheat-grains is

5 solidi of 12 denarii of 28-8.
3 Capitulare Mantuanum, s. 9,
1 De moneta : ut nullus post
Kalendas Augustas istos dinarios
quos modo habere visi sumus
dare audeat aut recipere : si quis
hoc fecerit, vannum nostrum
conponat.'

188

Tribes conquered by Charlemagne.

Charlemagneenactedthat the
silver
solidus should
be legal
tender f o
the gold
solidus.

sanction of ancient custom. In the addition made
to Tit. XXXVI. of the Bipuarian 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 Boman 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 1862,1
Dr. Ad. Soetbeer endeavoured to show, and with con
siderable 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 Charle
magne was appeahng to an earlier Frankish custom
of reckoning 12 silver denarii or drachmas 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 after
wards were reckoned at 40 to the solidus. 2
EconomicaUy speaking, the substitution of the
solidus of 12 denarii for the gold solidus, if they had
been Boman drachmas, would have been reasonable
and might have made no change in prices ; but the
1 Beitrage zu.r Geschichte 2 Forty argentei or drachms
des Geld- und Miinzwesens in to the solidus would have meant
Deutschland. a ratio of about 1:30.

The ' Nova Moneta.'

18 9

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.
FoUowing the order of date, the Capitulare of
a.d. 785, ' de partibus Saxonias,' 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. Guerard has shown from the various
instances given in the ' Bolyptique dlrminon ' that
on the estates of the Abbey of St. Germain-des-Bres
the price of oxen remained at an average of eight
silver solidi long after the death of Charlemagne.1
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 2 contains the following
section which reveals the beginning of confusion : —

Thisinvolved a
ratio of
1:4.

Ut omnis solutio atque com-
positio, que in lege Saliga con-
tinetur, inter Francos per duo-
decim denariorum solidos com-
ponatur, excepto hubi contentio
contra Saxones et Frisones
exorta fuit, ibi volumus ut 40
dinariorum quantitatem solidus
habeat quern vel Saxo vel Frisio
ad partem Salici Franci cum eo
litigantis solvere debet.

That every payment and com
position which is contained in the
lex Salica between Franks shall
be paid by solidi of twelve pence,
except that where a dispute has
risen up against Saxons and
Frisians we will that the solidus
shall be of the amount of 40 pence
which either a Saxon or a
Frisian ought to pay to a Salic
Frank at law with him.

Exception made as to
Saxonsand
Frisians.

1 Pol/yptique d'Irminon, In
troduction, i. 151. See also No.
82 of St. Gall Charters (Wast-
mann, i. p. 78), in which is an

annual payment of ' i bovem
v solidos valentem ' sub anno
a.d. 778.
2 Pertz, p. 85.

190 Tribes conquered by Charlemagne.

The nova
moneta enforcedby
penalties.

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 quae in lege
Saliga scripta sunt.' 1 This looks like a general re
servation of the fines and wergelds of the Lex Salica.
But it does not seem to have been so intended, or
perhaps there was vaciUation in the Councils of
the Emperor.
A Capitulare of a.d. 816 2 contained the fol
lowing : —

De omnibus debitis solvendis
sicut antiquitus fuit constitutum
per duodecim denarios solidus
solvatur per totam Salicam legem,
excepto leudis, si Saxo aut Friso
Salicum occiderit, per 40 dinarios
solvant solidum. Infra Salicos
vero ex utraque parte de omnibus
debitis sicut diximus 12 denarii
per solidum solvantur, sive de
homicidiis sive de omnibus rebus.

In the payment of all debts
according to ancient custom the
solidi shall be paid by 12 denarii
throughout Salic Law, except in
the case of wergelds, if a Saxon
or Frisian shall kill a Salic Frank
let the solidus be paid by 40
denarii. Among Salic Franks, however,
on both sides as to all debts, as
we have said, 12 denarii shall be
paid for the solidus, whether in
the case of homicides or anything
else.

As between Salic Franks, therefore, the solidus of
12 denarii was to be legal tender in payment of
wergelds and everything else.
This was all very well for debtors, but it was
not so satisfactory to creditors. The exception that,
when a Frank was kiUed by a Saxon or a Frisian,
the wergeld was stiU 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

1 Pertz, p. 114.

Pertz, p. 116.

The ' Nova Moneta.

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 l 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 And it
new currency was maintained as legal tender in PernS-e
France, and the gold currency practically disappeared. nent and
Charlenmgne and his successors coined very few ad°p*ed
more gold solidi and tremisses. King Offa and after and
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
generaUy recognised as the pound of monetary
reckoning in Western Europe.
So far Charlemagne triumphed. But in the But the
meantime the artificial ratio of 1:4, sought to be between
established between gold and silver, could not be g°ldand
° . silver
maintained. The pound of silver remained the went back
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. 864.2
These were the changes in the currency which

1 Pertz, p. 72. Eefusing to
receive the new denarii must
have meant as 12 to the solidus,
for the new denarii themselves
were heavier than the old ones,

32 wheat-grains instead of 28-8.
2 Pertz, p. 494. KaroU II.
Edictum Pistense, a.d. 864 : Ut
in omni regno nostro non amplius
vendatur libra auri purissime cocti,

192

Tribes conquered by Charlemagne.

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 sUver.
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
weight of current in France and in England were of the same
silver ... i -m- i -i • .. „
-.required 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.

All debts
could be
paid in
¦one third
of the

nisi duodecim libris argenti de
novis et meris denariis.
Illud vero aurum quod coctum
quidem fuerit, sed non tantum

ut ex deauratura fieri possit eo libra
una de auro vendatur decern
libris argenti de novis et meris
denariis.

The 'Nova Moneta.' 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. Obvibusly,
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 in which
of the newly conquered Frisians and Saxons, the ™\*faty
question would certainly arise whether the wergelds we^elcls
were to be stated in the equivalent of their old Frisians
customary value in cattle, or reduced to one third of Saxons
their old value by retaining the traditional number l^the^
of solidi as if they were still of the gold value. laws?
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 stiU
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
o

194 Tribes conquered by Charlemagne.
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 customarj- wergelds and
make them payable in silver solidi. This would pro
bably 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 im
memorial 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.

H. THE LEX FRISIONUM.
The tribes conquered by Charlemagne, whose
laws we have now to examine, differed from those
whose laws and wergelds have been aheady considered
in one important particular. They were not con
quering tribes which had migrated into districts
already under Boman law.

The Lex Frisionum. 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, more
over, conquests of stiU pagan tribes by Christian and
partly Bomanised Franks.
Frankish conquest had extended far into Frisian
and Westphahan territory under the Merovingian
kings. In Frisia Frankish influence was shown by
the existence of Merovingian mints at Duurstede.1
In Westphalia, at Soest and Baderborn, there were
aheady 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 Was the
XXXVI. of the Bipuarian law that there were Frisians iV60 soiidi?
as weU as Saxons, Burgundians, Alamanni, and
Bavarians resident in the Bipuarian district. More
over, it was directly stated that these immigrants were
to be judged, not by Bipuarian 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.

1 Traite de Numismatique du I (Paris, 1891), vol. i. pp. 329-332.
Moyen Age, par Arthur Engel |
o 2

196 Tribes conquered by Charlemagne.

The laws
are of
differentdates.

Two centuries before the date to which the coUection
of Frisian laws is assigned, the Bipuarian 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,1 the
inference would be strong, and perhaps aU 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.2
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 coUection of the
customs of the three districts into which Frisia was
divided, with modifications and various additions
made to the original collection s& 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 diffi-

1 Sohm, in his preface to the
Ripuarian law in Pertz, against
his own former opinion, concludes
that clause xxxvi. did go back
to the sixth century, and was

originally a part of the Lex
(p. 188).a See Eiohthofen's preface to
the Frisian Laws in Pertz,
p. 631.

The Lex Frisionum.

197

culties 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 pur
pose. 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 The three
certain glosses which appear late in the laws 1 we are ^^s °£
told that each division had a separate solidus of its ,and ,their
OWn. solidi.
(1) Between the Laubach and Weser (the North
ern division) the solidus is described as of two
denarii, i.e. tremisses, of the nova moneta.2 This
solidus, we shaU 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 sohdus is said to have been of three
denarii, or tremisses, of the nova moneta,3 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 1\ denarii

1 They appear in the Additio
Sapientvum,' Tit. ii., clauses lxiii.
and Ixxviii.
2 ' Inter Wisaram et Laubachi,

duo denarii novi solidus est.'
3 ' Inter Laubachi et inter
Flehi, tres denarii novae monetae
solidum faciunt.'

198 Tribes conquered by Charlemagne.
or tremisses ad novam monetam, i.e. eighty wheat-
grains of gold.1
But it seems to be cle'ar that the statements of
the wergelds and other fines in earlier clauses of the
laws are not made in these local sohdi.
Thus in Title XVI. we are told that Inter Laubachi
et Sincfalam, i.e. in both Middle and Southern divi
sions, in cases of homicide the payment to the lord
for breach of his peace (de freda) was thhty sohdi,
' which solidus consists of three denarii,' although the
local solidus of the Southern division was that of %\
tremisses. Sometimes the fines are stated in sohdi of
three tremisses and sometimes in sohdi 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 Mero
vingian 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 foUowing upon the conquests of Charle
magne.

1 'Inter Flehi et Sincfalam
solidus est duo denarii et dimidius
ad novam monetam.' That the
word denarius was applied to

gold as well as silver coins, see
mention of the ' gold penninok '
of Gondebald in Chronijck van
Vrieslandt, sub a.d. 739.

The Lex Frisionum.

199

Having thus so far cleared the way, we pass wergelds
on to the amounts of the wergelds as stated in the Lex. goifai
Title I. is headed Incipit lex Frisionum, et ha?c est ™^ei
simpla compositio de homicidiis. And the wergelds of
the three districts as stated in the text and glosses
may be tabulated as follows : —
(1) Between the Laubach and the Weser.1
Nobilis 106 solidi and 2 denarii (or tremisses)
Liber 53 „ „ 1 denarius
Litus 261 „ „ § tremissis
(2) Between the Laubach and the FU?
Nobilis 80 solidi | Payable § t0 the heir of the slain and
( g to his ' propinqui proximi.'
Liber 53 „ and 1 denarius (i.e. tremissis).
Litus 27 „ less 1 denarius (payable to his lord).
9 „ less $ denarius j Payable to the propinqui
( of the slam.
(3) Between the Fli and the Sincfal*
Nobilis 100 solidi

LiberLitus

50
25

of three denarii [i.e. tremisses]
novce monetae

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 1^ times

1 ' Inter Laubachi et Wisaram
weregildus nobilis 106 solidi et
duo denarii, liberi 53 solidi et
denarium, liti 26 solidi et demi-
dius et dimidius tremissis.'
2 ' Si nobilis [or liber or litus]
nobilem occiderit, 80 solidos
componat; de qua mulcta duae
partes ad haeredem occisi, tertia
ad propinquos ejus proximos

pertineat . . . liberum solidos
53 et unum denarium solvat . . .
litum 27 solidos uno denario
minus componat domino suo,
et propinquis occisi solidos 9
excepta tertia parte unius denarii.'
3 ' Inter Fli et Sincfalam
weregeldus nobilis 100 solidi,
liberi 50, liti 25 (solidi denarii
3 novse monetae).'

200 Tribes conquered by Charlemagne.
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 novo?
moneta?. 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 nova-
moneta? was the Southern district, first conquered
and most thoroughly brought under Frankish in
fluence. The other two districts had apparently not
yet so completely come under it.
Accordingly, if we take the 106f solidi of the
nobilis of the Northern district to be of Merovingian
standard, the result is (106f x 86 -4 wheat-grains)
9216 wheat-grains, or exactly 16 Boman 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 x 86-4 wheat grains) make exactly the
Boman pound of 6912 wheat-grains or 12 Boman
ounces, i.e. \\ gold marks.

The Lex Frisionum. 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 Wergelds
districts north of the Zuider Zee in marks of the marks'
Scandinavian system thus : Be^ictribes.

Nobilis .

. 2 or 11 gold marks,

Liber

. 1 „ mark.

Litus

. £ „ mark.

That these wergelds could be stated thus evenly
in gold marks of the Scandinavian system, whilst in
Frankish solidi they could be stated only in uneven
numbers and fractions, is an interesting fact. It
seems to show that the original wergelds went back
to a time when the trade intercourse of Northern
Frisia was connected mainly with Scandinavia, the
Baltic, and the Eastern trade route. In ' Beowulf ' we
found that Frisia was on the horizon of the area
included within the vision of the poet, the interest of
whose story lay chiefly in the Baltic.
Now let us compare the wergeld of the liber in Only one
these districts, viz. 53 solidi and 1 tremissis of Mero- i6o soiidi.
vingian currency, with what the statement in the
Bipuarian 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 fohow further
the text of the Frisian laws.

202 Tribes conquered by Charlemagne.

Slave to
be paid
for at his
value.

Value of
the dog.

In s. 11 of Tit. I. it is enacted that if any one,
whether nobilis, liber or litus, or servus, shaU slay
the servus of another, he shaU compound for the servus
according to his value. And in s. 13 of the same
title it is stated that if a slave shaU kiU either a
nobilis or liber or litus, unknown to his lord, the lord
of the slave shaU 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 shaU
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 aU domestic animals, except
the dog : they are all to be paid for at the owner's
estimate of value, or the aUeged slayer must clear
himself with as many oaths as the judge may re
quire. The dog is the only animal whose value is fixed
by the law.
same in the several divisions.

And its value at first sight was not the

Between Laubach and Sincfal.
Dog for hawking . . 4 sol.
Wolfhound accustomed to
kill wolves .
Wolfhound which wounds

but does not kill
Shepherd dog .

3 sol.
2 sol.
lsol.

Between Laubach and Weser.
8 solidi and 12

The difference between the value of the dog in the
Northern and the other divisions can hardly be other
than one of different currencies. Brobably the values
for the Northern division may be silver values. It

The Lex Frisionum. 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 kiU a wolf was valued
at 3 gold solidi, or half as much again as the ' best
ox,' 1 and in the Lex Salica the canis pastoricalis 2
was valued at 3 solidi. It is not difficult, therefore,
to understand how in Frisia the dog which could
kiU 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 iUustrating Frisian Methods
methods of compurgation, the ordeal of the lot and purgation
of hot water, and trial by battle, all of which evidently and
belong to ancient tribal custom.
Title XIV. relates to the slaying of a man in a
crowd, and describes the means taken to ascertain
whose deed it was. Each division had its own custom.
That of the Middle district is first described : —
The relative of the slain may summon seven men and charge
each of them with the crime, and each is then put upon his
oath with eleven co-swearers. Then they are to go to the church,
1 ii. lxxxiv. " Tit. vi.

204 Tribes conquered by Charlemagne.
and lots are to be cast upon the altar, or if the church be too far
off the lots are to be cast upon relics.
The lots are to be two pieces (tali) cut from a rod and called
teni, on one only of which is the sign of the cross, the other being
left blank. A clean cloth is to be spread over the altar or the
relics, and then the priest (or if none, an innocent boy) ought to
take one of the lots from the altar and pray God to show by some
evident sign whether those seven who have sworn have sworn
truly. If he takes up the lot marked with the cross, then those
who have sworn were innocent. But if he takes up the other,
then each one of the seven makes his own lot, from a rod, and
marks his own sign on it, and so that both he and those standing
by can recognise it. And the lots shall be wrapped up in clean
cloth and laid upon the altar or relics, and the priest, if he be
there, and if not the innocent boy, as above, shall take up each
of them one by one from the altar, and shall ask him who knows
it to be his own lot. And he whose lot happens to be last shall be
compelled to pay the composition for the homicide. The rest,
whose lots have already been taken up, are absolved.
But if, in the first trial of the two lots, he takes up the one
marked with the cross, the seven shall be innocent, as aforesaid,
and he (the accuser), if he wishes, shall summon others for the
same homicide, and whoever may be summoned ought to clear
himself by complete oath with 11 co-swearers. And this shall
be enough for the accuser, nor can he bring any one further
to the lot.
This law prevailed between the Laubach and the
Fh. But between the Fli and the Sincfal for a case
of this kind the following was the custom : —
He who seeks composition for a homicide shall swear on
saints' relics that he will not summon in this matter other than
those who are suspected by him of the actual homicide: and
then he Bhall summon for the homicide one or two, or even three
or four, or however many there be who have wounded him who
was slain. But though there were twenty, or even thirty, yet not
more than seven are to be summoned, and each of those summoned
shall swear with eleven others, and shall, after the oath has been
tested by the judgment of God, show himself innocent by the (ordeal
of) boiling water. He who swears first shall go to the ordeal first,
and the rest in order. He who shall be found guilty in the
ordeal shall pay the composition for the homicide, and to the
king twice his own wergeld : the rest of his co-swearers shall be
treated as above concerning perjurers.

The Lex Frisionum. 205
Between the Laubach and the Weser the following
was the custom : —
He who seeks composition for homicide shall summon one
man, declaring him to be the homicide of his kinsman, and
saying that he ought to pay the ' leud ' of the slain man. And if
he, in reply, says that he is willing to purge himself on oath with
his co-swearers, let him who has summoned him as homicide
say that he wishes to summon him in placito publico, and let
him so do. Let him summon him in placito before judges, and
let him who is summoned, if he cannot deny, show another
defendant- for the homicide of which he is accused. And this ought
to be done thus :
Let him produce the man he wishes, and let him swear " he
is guilty of the homicide for which I am summoned," holding him
by the hem of his cloak. But if he wishes to deny this oath let
him swear and go forth to wager of battle against him. And
whichever of them in that battle is conquered (et sibi con-
crediderit) shall pay the ' leud ' of the slain. But if he be slain
his next heir shall pay the composition of the homicide. But in
this battle it is lawful for either to pay a champion for himself if
he can find one. If the hired champion is slain, let him who
hired him pay sixty solidi (ie. three librce) to the king, and over
and above pay the ' leud ' of the slain man.
The payment of sixty solidi — i.e. three librce —
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 Wergelds
that the compositions described in the immediately silver.
succeeding and closely connected clause are also
silver values. (Tit. XV.)
This is the custom in the same region observed for the com
position of wergeld : —
(1) Composition of a nobilis homo)
' per denarios veteres ' . j
(2) Composition of the liber 'per)
denarios veteres ' . . f ' 5
(3) Composition of a litus, of which \
two thirds pertains to the I . 2 lbs. 9 oz,
lord, one third to his kinsman )
(4) Composition of a servus . . . 1 lb. 4£ oz.

206

Tribes conquered by Charlemagne.

Thesesilver
values
•equal to
the gold
ones at
"the Norse
ratio 1:8.

There can, I think, be no doubt that the libras 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
Carlo vingian weight.
The pounds of this statement are therefore Boman
pounds, of 240 Merovingian pence. Let us compare
then the wergeld of the liber of 5^ 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. 5^- pounds instead of 5^. The silver wergeld
of the nobilis would equal lOf 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 Boman, i.e. Merovingian pounds, and
not in those of Charlemagne's nova moneta, is instruc
tive. 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 con
tinued 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 metro
polis of the North at the date of the laws. The mint
at Duurstede continued to coin gold coins till the

The Lex Frisionum. 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 Scandina
vian coinage.1 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 The
three Frisian districts, as stated in Tit. I. in gold me^ S|
solidi of three tremisses, back again into what they loay\ .gold
must have been when reckoned in the local solidi.
If originally they were reckoned in these local solidi
the result should be in even numbers.
Between the Laubach and the Weser.
Nobilis (9216 w.g.) = 144 solidi of 2 tremisses or 2 gold marks.
Liber (4608 w.g.) = 72 „ or 1 gold mark.
Litus (2304 w.g.) = 36 ,, or | a gold mark.
Between the Laubach and the Fli.
Nobilis (6912 w.g) = 72 solidi of 3 tremisses or 1£ gold mark.
Liber (4608 w.g.) = 48 „ or 1 gold mark.
Litus (2304 w.g.) =24 „ or | a gold mark.
Between the FU and the Sincfal.
Nobilis (9600 w.g.) = 120 solidi of 2$ tremisses.
Liber (4800 w.g.) = 60 „
Litus (2400 w.g.) = 30 „
It is interesting to observe that the wergelds of
the two districts north of the Zuider Zee, when
translated back again into local solidi, turn out to
have been in even numbers of such solidi, as well as
in even gold marks of the Scandinavian district,
1 Engel's Traiti de Numismatique du 'Moyen Age, i. 233
and 329.

208 Tribes conquered by Charlemagne.

Why only
one third
of 160
solidi ?

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 wer
gelds 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 buUock.
we are led to conjecture that the Frisian local sohdi
also may have represented the animal in which the
wergelds were originaUy 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. Bossibly the gulden of
this silver currency may point back to a time when
the ' gold piece ' was reckoned of the value of ten
sheep.1 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 Bipuarian law apparently declared
it to have been.
Bichthofen, in his preface and notes to the Frisian
laws in the edition of Bertz, points out that in later

1 Martini's Manualede Metro-
logia, sub ' Emden.' And com
pare Bidgeway, p. 371. He shows

that in Italy and Sicily 10
sheep = 1 cow.

The Lex Frisionum. 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, Fines and
Tit. II. , the amount for the hand is stated to be wergefds
' 25 solidi et 5 denarii.' And after the mention of after"1
the amounts for the several fingers are the words, 'Hoc warcls-
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 Bichthofen had some reason at
any rate to form the opinion that in the additions to

310 Tribes conquered by Charlemagne.

The .
wergeld of ' liber '
was pro
bably 160
solidi.

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 Bipuarian laws that the Frisian
wergeld was 160 solidi was therefore correct.1
So far Bichthofen'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

1 It is true that in the clauses
trebling the amounts for wounds it
is not directly stated that the
wergelds were also trebled ; but
the use of the words in Tit. I.,
' in simplo,' suggests that it may
have been so ; whilst the facts that
the triple payment for the loss,
e.g. of the eye, which in the
title De Dolg was a half wergeld,

would otherwise exceed the full
wergeld, and that, in the one case
in which in the 'De Dolg' the
whole wergeld was payable, the
amount in the Additio is the treble
wergeld, make it almost certain
that it was so, otherwise the
injury would be paid for at three
times the value of a man's life.

The Lex Frisionum.

211

been three gold marks or 160 Merovingian gold solidi,1
as stated in the Bipuarian laws.
With regard to the distribution or division of the Division
wergeld amongst the relations of the person slain, among86
the laws mention only the custom of the Middle f^ed0*
districts, according to which two thirds of the wergeld
went to the heir of the slain and one third ' ad pro-
pinquos 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 Later
Friesland' the mentele of the kindred is described as
4 lbs. 5 oz. 6§d, and the erbsiihne, or two thirds to
be paid by the heirs, as 8 lbs. 10 oz. 13^ pfenning.
The pound, we are told, is 12 oz. of 20d., so that here
we have clearly Frankish currency and silver. The

1 4608 x 3 = 13824, i.e. 160
solidi of 86-4 wheat-grains. The
wergeld of the Island of Gotland
was also 3 gold marks or 160 solidi
of Merovingian standard. See

also on the whole question Dr.
Brunner's article ' Nobiles und
Gemeinfreie der Karolingischen
Volksrechte ' in Zeitschrift der
Savigny-Stiftung &c, vol. xix.

212 Tribes conquered by Charlemagne.
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 Bipuarian statement that the
ancient Frisian wergeld was one of 160 solidi.1
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 : —
(1) The brother, or if none, the brother's son, or if l|j3- oz. p-
none, the sister's son . . . . . . 0 12 0
(2) The uncle on the father's side (fedria) . . .090
The uncle on the mother's side (eem) . . .040
Or in default of these the cousins of the slain, or
in default the cousins of the uncles.
(3) The eftersusterbern or cousins descendants of
grandparents :
(a) On the side of the father's grandfather . .038
(b) On the side of the father's grandmother .038
(c) On the side of the mother's grandfather .025
(d) On the side of the mother's grandmother .025
(4) The rest falls on the cousins — the eight stems which
descend from the great grandparents
The four stems from father's side . . . . 0 7 12
„ „ mother's side . . .078 4~ 3~ 6
This interesting illustration of the payment of a
Frisian wergeld, though of later date than the laws,
confirms the statement in the laws that in its division
the immediate heirs of the slain took two thirds and
the propinqui proximi one third. It shows that at

1 It would exactly equal 200 I at a ratio of 1 : 8. or 160 solidi
of the local solidi of two tremisses | of 80 wheat-grains instead of 86-4.

The Lex Saxonum. 213
a. later date the immediate ' erbsuhne ' 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 Divisio
allied but separate tribes with their own peculiar gaxon
customs. tnbes-
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 ex
plain 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 Tribes conquered by Charlemagne.
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
statement wergelds, with the statement of the Bipuarian Law in
geilsof mind, that the Saxon as weU as the Frisian wergeld
nobihs was 2gQ solidi. And it is well that we can do so, for
and litus. otherwise we might very easily lose our way.
The Lex Saxonum begins with a title ' de
vulneribus ' which describes the payments to be made
for the different wounds inflicted upon a nobilis.
Title II., ' de homicidiis,' next follows with a statement
of the wergelds.
Qui nobilem occiderit, 1440 | Let him who shall kill a
solidos conponat ; ruoda dicitur nobilis make composition 1440

apud Saxones 120 solidi et in pre
mium 120 solidi . . .
Litus occisus 120 solidis com-
ponatur . . .

sohdi ; the Saxons call ' ruoda '
120 sohdi, and ' in premium ' 120
solidi . . .
The litus killed is compounded
for with 120 solidi.

Much controversy has arisen upon the two extra
payments ' ruoda ' and ' in premium ; ' but whatever
they may have been, they need not surprise us.
Though we may not be able to identify them with
the ' halsfang ' or the ' wites ' and ' bots ' of Anglo-
Saxon laws, they were probably payments of some
thing of the same kind, additional to the wergeld.
It is more important to remark the absence alto
gether of any mention of the ordinary 'liber' or
' ingenuus ' between the nobilis and the litus, espe
cially as in the title on theft the three classes are
all mentioned.

The Lex Saxonum.

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 :

Litus si per jussum vel
consilium domini sui hominem
occiderit, ut puta nobilem,
dominus compositionem persolvat
vel faidam portet. Si autem
absque conseientia domini hoc
fecerit, dimittatur a, domino, et
vindicetur in illo et aliis septem
consanguineis ejus a propinquis
occisi, et dominus liti se in hoc
conscium non esse cum undecim
juret.

If a litus shall slay a man,
e.g. a nobilis, by the order or
counsel of his lord, the lord shall
pay the composition or bear the
feud. But if the litus shall do this
without the knowledge of the
lord, he shall be dismissed by the
lord and avengement made on
himself and seven others of his
blood by the near kindred of the
slain, and the lord of the litus
shall swear with eleven [com
purgators] that he had no know
ledge of the deed.

Title IV. on Theft is interesting as, besides mention
ing the liber, it fixes the value of the four-year-old ox at
the date of the clause at 2 solidi, i.e. the old ox-unit.
VI. He who by night steals a four-year-old ox, which is
worth 2 solidi, shall be punished by his head.
Theft of bees from within another's fence or of
things to the value of two solidi by night from a
house, or of things of any kind, day or night, of the
value of three solidi, was to be capitally punished.
Theft of things of less value than three solidi was
to be compounded for ninefold, and pro freda the
nobilis was to pay 12, the liber 6, and the litus 4 (? 3)
solidi. In Clause 6 of Title H. is the following : —
Si mordum totum quis fecerit, I If any one commit murder
componatur primo in simplo I with aggravation of conceal-

Value of
the ox
2 solidi.

216 Tribes conquered by Charlemagne.

juxta conditionem suam; cujus
multae pars tertia a proximis ejus
qui facinus perpetravit com-
ponenda est, dusB vero partes
ab illo ; et insuper octies ab eo
componatur, et ille ac filii ejus
soli sint faidosi.

ment he (the murderer) makes
composition first in si/mplo ac
cording to his condition, of which
payment one-third part is to be
paid by the next of kin of him
who has perpetrated the crime,
and two-thirds by himself; and
besides eight times (the wergeld)
is to be paid by him, and he and
his children alone shall be in
feud.

This clause is valuable as showing that, as in the

Murderer
pays two
thirds and customs of Frisia and most other Low German tribes,
kindred the murderer paid two thirds and his kinsmen one
one third
of wer
geld, as in
Frisianlaw.

Local customs
as to
dowerof wife.

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 aU 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 re
ceived on marriage for her life and left it to her
children. Should she survive her chddren her next
heirs received it. If there were no children, the

The Lex Saxonum.

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 im
portant. According to the best manuscripts it was
as foUows : : —

Tit. XVIII. De Solidis:
(1) Solidus est duplex; unus
habet duos tremisses, quod est
bos anniculus duodecimmensium:
vel ovis cum agno.
(2) Alter solidus tres tremisses
id est, bos 16 mensium.
(3) Majori solido alise com-
positiones, minori homicidia
componuntur.

(1) The solidus is of two kinds ;
one has two tremisses, which is
the one-year-old bullock, or a
sheep with lamb.
(2) The other solidus, three
tremisses : that is, the ox of sixteen
months. (3) Other compositions are
compounded for with the greater
solidus, homicide with the lesser

Wergelds
to be paid
in solidi of
two
tremisses,i.e., value
of the
bullock.

This was originally the final clause. But the
following additions were afterwards made. In the
Corvey Code : —

Quadrinis bos duo solidi. Duo
boves quibus arari potest 5
solidi. Vacca cum vitulo solidi
duo et semis. Vitulus anniculus
sol. 1. Ovis cum agno et anni
culus agnus, si super adjunctus,
.sol. 1.

The four-year-old ox, two
solidi. Two oxen by which one
can plough five solidi. Cow, with
calf, two-and-a-half solidi. Tear-
old calf, one solidus. Sheep with
lamb, if a year-old lamb be
added, one solidus.

1 Pertz, p 83.

218 Tribes conquered by Charlemagne.

And in the Codex Lindenbrogius : x —
The solidus of the Westfali
and Angrarii and Ostfali is 30
seeffila of rye, 40 of barley, 60
of oats ; with both : two siclse of
honey a solidus ; four-year-old
ox two sohdi ; two oxen, with
which one can plough, five sohdi ;
good ox, three sohdi ; cow with
calf, two-and-a-half sohdi.

Westfalaiorum et Angra-
riorum et Ostfalaiorum solidus est
secales seeffila 30, ordei 40, avense
60 ; apud utrosque : duo side
mellis solidus ; quadrimus bos
duo sohdi : duo boves quibus
arari potest quinque sol., bos bonus
tres solidi ; vacca cum vitulo
solidi duo et semis.

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 buUock, or a sheep
with her lamb. And the lesser penalties for wounds,
&c, should have been stated in sohdi of three tre
misses, representing the ox of 16 months. These
values in gold tremisses would then have been con
sistent with that of the fuU-grown four-year-old ox
as stated in Tit. VI. at two sohdi — i.e. the normal
value of the ox before the change in the currency.
But, as it is, the text is not consistent throughout.
Beturning to the statement of the wergelds :
Nobilis .... 1440 sohdi.
Litus . . . 120 „
we are struck at once with the excessive amount of
that of the nobilis. But if the solidi were of two
tremisses, as they should have been, then, translated
into solidi of three tremisses, the amounts would
stand thus : —
Nobilis . . 960 solidi, or 1440 bullocks.
Litus . . 80 „ or 120 „
These amounts appear to be still far too large ;
whether regarded in cattle or in gold.
1 Pertz, p. 84.

The Lex Saxonum. 219
It seems probable that, in spite of the last clause, The
the wergelds of the Lex Saxonum, in the text as we ofVe™6"
have it, are described in Charlemagne's silver solidi |^s
of l'2d. — the solidi which at the moment he was to be in
° . silver
trying at a ratio of 1 : 4 to substitute for gold. solidi.
Very nearly contemporary with the Lex Saxonum
is Charlemagne's Capitulare de pjartibus Saxonie, a.d.
785. l 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 writhin a
year of birth : —
Nobilis .... 120 solidi to the fisc.
Ingenuus .... 60 „ „
Litus  30
So again in s. 20 for illicit marriage, and in s. 21
for engaging in pagan rites : —
Nobilis . . . 60 solidi.
Ingenuus . . . . 30 „
Litus  15 „
These fines were evidently payable in the silver
solidus, for in s. 27 the penalty for a man remaining
at home contrary to the bann was to be 10 solidi or
one ox. Obviously this is the value of the ox in
silver solidi before they were made legal tender. Its
gold value was only 2 solidi, as stated in Tit. VI.
of the Lex. And, as we have seen, the value of the ox
in the silver solidus of twelve pence was maintained
at an average of about 8 solidi.
Twelve years later in date another Capitulare
..was issued, entitled Capitulare Saxonicum and dated
1 Pertz, p. 34.

220 Tribes conquered by Charlemagne.
capitulare a.d. 797. l It was the result of a conference and con-
797.'D' tract 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 nobiles
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 stiU 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 di-
strictione), 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 stiU 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 sohdi, and to
insure obedience to his commands by any amount
up to 100 or even 1000 solidi.

Pertz, p. 84.

The Lex Saxonum. 221
Lastly, in the final clause is the following : —
Moreover, it is to be noted what the sohdi of the Saxons Wergelds
ought to be, i.e. : payable in
The one-year-old bullock of either sex in autumn, as it is sent cat*le &c.
into the stable, for 1 solidus. Likewise in spring, when it leaves siiVer
the stable, and afterwards as it grows in age, so its price in- solidi of
creases. De annona bortrinis let them give for a solidus 40 12 pence.
scapili, and of rye 20.
Septentrionales for a solidus, of oats 30 scapili, of rye 15.
Bortrensi 1^ sicla of honey for a solidus. Septentrionales
2 sicla of honey for a solidus ; also of clean barley they give the
same as of rye for a solidus.
In silver let them make twelve pence the solidus. (In argento
duodecim denarios solidum faciant.) In other things at the
price of estimation.
So that in this Capitulare of a.d. 797, issued just
before Charlemagne became Emperor, there is the
clear statement that the one-year-old bullock is still
to be reckoned as one solidus, and the further state
ment 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, foUowing 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 Sahca of three gold
tremisses or of 40 pence.
Now, having derived this information from the
Capitularies, let us turn back to the laws.

222 Tribes conquered by Charlemagne.
Destruc- In Tit. I. De vulneribus, the penalty for destroying
¦eyT&c. another's eye is 720 solidi, exactly half the number
with a' °f s°l1(ii in the wergeld of the nobilis, and for both
half wer- 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.
The soiidi Further, if we look at these payments for wounds
silver carefully, it becomes clear that they cannot be gold
sohoi. 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
Bipuarian Laws.
We conclude then that, in spite of the last clause
in the law, these values, both for wounds and homi
cide, 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 Charle
magne's substitution of the silver solidus of 12J. for
the gold solidus.
Up to this time the wergelds had been paid in

The Lex Saxonum. 223
buUocks valued in gold at the solidus of two tre
misses, 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 Conm.
hitherto payable in cattle and in gold it mattered sioninthe
. currency.
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 kiUed
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 \2d. for all debts, an exception
was made of wergelds payable by Saxons and Frisians
who kiUed a Salic Frank. These were still to be
paid for, as heretofore, in the solidus of 40rf. 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.
HowT 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 Iribes conquered by Charlemagne.
The wer- the other clauses in the laws being apparently left
must be unaltered or only partially altered. But assuming
threeetoby ^at ^e wergelds as tney appear in the present text
obtain 0f Tit. II. are stated in silver solidi of twelve denarii,
value in
gold 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 Bipuarian
laws so often quoted declared it to be.
The wergelds would then stand thus : —
Nobilis .... 480 sohdi of three tremisses.
Wergeld [Liber .... 160 „ „ 1
of ' liber ' Litus .... 40 „
then 160
sohdi. or -n ^e jocaj sohdi of two tremisses : —
Nobilis .... 720 sohdi or bullocks.
[Liber  240 ..J
Litus  60 „ „
These then are the figures which, if we are right,
were the original figures of the Title De homicidiis.
IV. LEX ANGLIOEUM ET WERINORUM, HOC EST
THURINGORUM.
We may probably follow Bichthofen * in his con
clusions 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.

Pertz, p. 118.

The Lex Angliorum et Werinorum. 225
In the first title the wergelds for homicide are wergelds
° of the
Stated :  Anglii and
Adaling .... 600 solidi. Werini.
Liber .... 200 sohdi.
Servus .... 30 solidi.
These are evidently unaltered gold values.
The rest of the first five titles relate to wounds, a half
and we need only mention that the destruction of an foTde-
eye, hand, or foot, or a blow causing loss of hearing, ofan eye
was to be paid for with half the wergeld of each hand' or
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 Triple
may have been the result either of noble birth or oTthe
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 Bipuarian 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 foUow a duodecimal system, in
these laws the more usual decimal reckoning is re
tained as in the Lex Salica.
The fact that among the additional titles there is
one ' Be alodibus ' connects still further these laws,
notwithstanding their later date, with the Salic and
Bipuarian laws which contain similar titles. And it
Q

Adaling.

226 Tribes conquered by Charlemagne.
is worth while, for purposes of comparison, to give it
at length. (Tit. v.)

The title
'De
Alodis.'

(I) Hereditatem defuncti filius
non filia suscipiat. Si filium non
habuit, qui defunctus est, ad
filiam pecunia et mancipia, terra
vero ad proximumpaternse genera-
tionis consanguineum pertineat.

(II) Si autem nee filiam non
habuit, soror ejus pecuniam et
mancipia, terram proximus
paternal generationis accipiat.
(Ill) Si autem nee filium nee
filiam neque sororem habuit, sed
matrem tantum superstitem re-
liquit, quod filia vel soror de-
buerunt, mater suscipiat, id est,
pecuniam et mancipia.
(IV) Quodsi nee filium nee
filiam nee sororem aut matrem
dimisit superstites, proximus qui
fuerit paternse generationis, heres
ex toto succedat, tarn in pecunia
atque in mancipiis quam in terra.
(V) Ad quemcumque hereditas
terrs pervenerit, ad ilium vestis
bellica, id est lorica, et ultio
proximi et solutio leudis debet
pertinere. (VI) Mater moriens filio
terram, mancipia, pecuniam di-
mittat, filise vero spolia colli, id
est rnurenulas, nuscas, monilia,
inaures, vestes, armillas, vel
quicquid ornamenti proprii vide-
batur habuisse.
(VII) Si nee filium neo filiam
habuerit, sororem vero habuerit,
sorori pecuniam et mancipia,

(I) Let the son of the deceased
and not the daughter receive the
inheritance. If he who has died
had no son, to the daughter shall
go the cattle and slaves, but the
land shall pertain to the next
blood relation of the paternal
generation. (II) But if he had no daughter
either, his sister shall take the
cattle and slaves ; the next of the
paternal generation shall take the
land. (Ill) But if he had neither
son nor daughter nor sister, but
he left a mother only surviving,
what daughter or sister should
have had, let the mother take, i.e.
the cattle and slaves.
(IV) But if he leaves neither
son nor daughter nor sister nor
mother surviving, he who shall
be next of the paternal generation
shall succeed as heir of the whole
as well in cattle and slaves as in
land. (V) And to whomsoever the
inheritance in the land shall come,
to him ought to pertain the coat
of mail, i.e. the birnie, and the
avenging of the next of kin and
the payment of wergeld.
(VI) A mother dying shall
leave her land, slaves, and goods,
to her son, but to her daughter
her neck-treasures, i.e., necklaces,
buckles, collars, earrings, robes,
bracelets, or whatever personal
ornaments she appeared to have.
(VII) If she had neither son
nor daughter, but had a sister, to
the sister shall she leave the

The Lex Angliorum et Werinorum. 227

proximo vero paterni generis
terram rehnquat.
(VIII) Usque ad quintain
generationem paterna generatio
succedat. Post quintam autem
filia ex toto, sive de patris sive de
matris parte, in hereditatem suc
cedat ; et tunc demum hereditas
ad fusum a lancea transeat.

cattle and slaves, but the land to
the next of the paternal kin.
(VIII) As far as the fifth
generation the paternal kin suc
ceed. But after the fifth, a
daughter, whether on the father's
or on the mother's side, may suc
ceed to the whole inheritance ;
and then finally let the inheri
tance pass over from the spear to
the spindle.

As in the other laws so under these rules the The alod
alod clearly embraced both the land and the both land
' pecunia' and ' mancipia ' upon it. Its object, like andcattle-
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 ' x 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
1 See Du Cange sub voce ' Pecunia,' and the cases there mentioned
in which the word =pecudes, grex, &c.
o. 2

228 Tribes conquered by Charlemagne.

Male next
of kin
takes the
land and
chieftain ship, but
females
may have
cattleupon the
land.

they remained or were put. And so we are brought
once more to the practical question of the position of
women in relation to the land. That in certain
cases in default of male heirs they could inherit land
is one thing ; but this question of the cattle and
slaves involves quite another.
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 gweiy.
Till she married, her cattle would graze with
the cattle of her paternal gweiy ; and when she
married, with the cattle of her husband's gweiy.
And so under the rules of this clause ' De alodibus
it does not foUow 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 whom
soever 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.
Bead 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 aU its tribal traits. It
had not yet become the ' res propria ' of an individual
possessor under Boman law.

The Lex Chamavorum. 229

V. THE SO-CALLED LEX CHAMAVORUM.
This document, according to most recent authori
ties, relates to a district between the Frisians and
Saxons to the North and East, with the river Meuse
to the South.1
Its real title seems to be Notitia vel commemoratio The
de ilia euva qua? se ad Amorem habet, and it seems to na^ Vi
be not so much a code as a memorandum of the i^nblsh
wergelds and fines of a Frankish people settled in the
district alluded to. Brobably 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 dominions,
the same laws prevail ' as other Franks have.'
And then it at once describes the wergeld, as Wergeld
„ n of the
tollOWS :  Homo
Francus
The wergelds of this law are as under. Whoever kills — three
Homo Francus . . 600 solidi et pro fredo 200 sol. orlne''18''
Ingenuus . . 200 „ „ 66§ „ ingenuus.
Lidus . . . . 100 ,, ;, 33i .,
Servus .... 50 „ „ 16§ „
Then follows a clause (VII.) which states that if
any ' Comes ' be slain in his own ' comitatus ' the wer-
o-eld is to be three times that according to his birth.
o  ^ 
1 See Etudes sur la Lex dicta i par Henri Proidevaux. Paris,
Francorum Chamavorum et sur i 1891, chap. ii.
'Les Francs du Pays d'Amor,' ;

230 Tribes conquered by Charlemagne.
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 Boyal ' 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 oi the district
of Amor ?
The wergeld of the latter is the fuU normal
wergeld of 200 solidi. The Homo Francus in this
district was therefore very much above the ordi
nary 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 (XLX. and XX.),
and of him alone are any hints given as to kindred or
inhe-ritance. Clause XT II., in the following few words.
enlightens us as to his social position : —
If any Francus homo shall have sons, his inheritance in
woods and in land shall pass to them, and what there is in slaves
and cattle.
Concerning the maternal inheritance, let it go in like manner
to the daughter.
We must probably consider the privileged posi
tion 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

Concluding Remarks. 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 Payment
value of an eye or hand or foot was one quarter eyeetc.
of the wergeld, instead of half as in the Sahc and °^^r'
Bipuarian Laws. wergeld.
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 with
out bringing him before the Comes or centenarius was
60 solidi, as in the Bipuarian Laws.
VI. CONCLUDING REMARKS.
Before passing from the laws, the compilation
of which seems to date from the conquests of
Charlemagne, it may be weU 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 Tribes conquered by Charlemagne.
The two Geographically the Frankish group is sufficiently
gl-OUpsof mi i ¦ ¦-, , -l -¦ ,
tribes with compact. Ihe other is widely extended and
0/200 and scattered. Frisians and Saxons remain in their
160 sohdi. 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.1 Settled in their new quarters,
the Bhine 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 (advena?) in the Bipuarian
district, and, as we have seen, we owe our knowledge
of some of their wergelds very much to the recog
nition of them in the Bipuarian law.

1 It has already been stated i Gotland laws it cannot be re-
that the wergeld of the Island of i garded as certain that the amount
Gotland was three gold marks or ; was the same at the date of the
160 Merovingian solidi. But j Bipuarian laws.
owing to the late date of the I

CHAPTER VHI.
THE TBIBAL CUSTOMS OF THE OLDEST SCANDI
NAVIAN LAWS.

I. THE MONETARY SYSTEM OP 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. Marks,
The mark was divided into eight ores or ounces, and ortugs"
the ore or ounce into three ortugs, which were in fact
staters or double solidi. The ounce being the Boman The ortug
ounce of 576 wheat-grains, the ortug contained 192 stater or
wheat-grains, and was the exact counterpart in wheat- ox-limt-
grains of the Greek stater, i.e. Brofessor Bidgeway 's
ox-unit. Beckoned in wheat-grains, two Scandi
navian 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 Boman
ounces or 9216 Boman 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 Boman

234 Scandinavian Tribal Custom.
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
Boman 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 Boman ounces reaUy did con
tain, so long as the standard of the Boman 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.
The In Northern Europe the pound of twelve ounces
of"two 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
Boman 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 Bussian weight sjrstem was
recorded in the time of Beter the Great the unit both
for precious metals and goods was found to be the
Zolotnic or gold piece. Thus —

marks.

Norse Monetary System. 235
Dolja = -0444 grammes = wheat-grain.
Zolotnic = 4-265 „ = 96 w. g.
Funt = 409-511 „ = 96 zolotnic, or 9216 w. g.
Here, then, in wheat grains the Funt is the light
Mina Attica over again, Bomanised 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 Boland (Cracow) the
same. Only Sweden and Biga seem to have adopted
or preserved higher standards, the double mark of
Sweden being 425 and that of Biga 419 grammes ;
but even these feU far short of the standard weight
of 16 Boman 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 Boman 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 fuU Imperial weight. The
marks and the ores remained, but the old division
of ores into ortugs or staters had long ago dis
appeared. The division into marks, ores, and ortugs was,
however, in fuU 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 pur
poses 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 coin
age, was the ancient Eastern standard.
Thus the following weights, believed to belong to

236

Scandinavian Tribal Custom.

the Viking period, from the island of Gotland, are
now in the Boyal Museum at Stockholm (Nos. 4752
and 5984).

0

o o
o

o
0

0
o o
0
The ortug
in weight
= Eastern
oo
o o
0 O 0
0
o o
819
g"
ammes
=
100
stater or
two Mero
vingian solidi.
O 0
1
o-o-o 1
O 0
57-25
,,
=
7
0 o
O 0
32-65
,,
*
4
0 o
o o
32-4
,,
=
4
o
o 0
24-35
,,
=
3
8-1
8-16
8-18-12
The unit of these weights is exactly the Eastern
stater of 8-18 or two Merovingian sohdi.1
1 The depreciation in weight
cannot have been the result of
ignorance of the Roman standard.
We learn from the exceUent table
given by Montelius in his Be-
mains from the Iron Age of
Scandinavia that the gold solidi
of the Eastern Empire found
their way into the Islands of Got
land, Oland, and Bornholm in
considerable numbers, between
a.d. 395 and 518. He shows that,
while no silver coins of the Re
public or before Nero have been
found in Scandinavia, coins be
longing to the silver currency
of Rome after Nero found their .
way northwards in considerable j
numbers. Of Roman coins a.d. j
98-192 only four gold coins are >
known to have been found and
2304 silver coins. Then the gold
currency begins, and of dates
between a.d. 235-395, sixty-four
gold coins have beenfoundandonly
one sohtary silver coin. Lastly
came the gold currency of the
solidus of Constantine and his
successors a.d. 395-518, and of
this period 286 gold coins and one
silver coin are recorded as having
been found in Scandinavia. It is
clear, then, that the Roman stan
dard as well as the Roman system
of division of the lb. was known
in the North. For a long period
no doubt the chief trade of the
Baltic was with the Byzantine
Empire and the East.
Norse Monetary System. 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 be- /
fore the date of the Norse laws, Scandinavia had ^
come under Frankish influences also.
Aheady during Merovingian times, chiefly through
the Frisian mint at Duurstede, Merovingian currency
had become weU 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 The mark
pass that in the most ancient of the Norse laws the Roman
old Scandinavian reckoning in gold and silver marks, andCChar-
ores, and ortugs had become connected with the iemagne's
o mark oi
Frankish currency. During the period of Mero- the nova
Til (YilPtCL
vingian influence the Merovingian ounce and the
Norse ore were both, reckoned in wheat-grains, the
ounce of the Boman 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 Boman 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 Scandinavian Tribal Custom.
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 transla
tion 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.

TI. THE WERGELDS OP THE GULATH1NG AND
FROSTATHING LAWS.
The In approaching the consideration of the Scandi-
iaw.a mg navian 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 atten
tion upon the Gulathingslbg as the oldest of the Norse
laws. The Danish and Swedish laws and the Gragas
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 after
wards six, fylkis or districts each with its own thing

/

The Norse Wergelds. 239
and local customs.1 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 The
is the Frostathingslog belonging to the more northerly thingiaw.
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.

1 Die Entstehungszeit der alteren Gulathingslbg von Dr. Konrad
Maurer, p. 5.

240 Scandinavian Tribal Custom.
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.'
Grades of Both in the Gulathing law and in the Frosta-
'rett.' thing law this personal 'rett ' lies at the root of the
graduated payments for insults, wounding, and
homicide. And the statements of it are practically
identical in the two laws. They are as follows .- —
Gulathing (200) Frostathing (X. 35)

Leysing before freedom's

ale . . . .4 ores
Leysing .
6 ores
Leysing after freedom's
ale . . . .6 ores
Ley sing's son
8 „
Leysing's son 8 ores or 1 mark
B6nde .
12 „
Reks-thane ' . .12 ores
A'rborinnman316oresor 2 marks
Hauldman '" .
24 „
Hauldman . 24 ores or 3 „
Lendman and Stallare .
48 „
The chief difference is that the Frostathing law
divides the leysings into two classes, a significant
point on which important considerations turn.
The things for which full rett was paid may be
described as insults. If a man were knocked down,
even if he fell on his knees, or if his moustache were
' seized with hostile hand ' (195), or if a man were
called ' a mare or bitch,' these were insults for which
full rett was to be paid (196).
The payments for inflicting serious wounds (sar)
were regulated in the same gradations according to
1 The Reksthane is an official, born-man.
and quite a different person from 3 The A'rborinn man seems to
the B6nde. [ be the same as the Aettborinnman,
2 Elsewhere called the Odal- i.e. ' a man born in a kindred.'
The Norse Wergelds.

241

rank as the rett, but were threefold in amount. These
payments were made in 'baugs' or rings, each of
twelve ores of silver.

Frostathing Law (IV. 53)

Leysing .

. 2 rings

Reks-thane .

. 3 „

A'r-borinn man

• 4 „

Hauld .

• 6 „

Lend-man

• 12 „

Jarl

. 24 „

King .

• 48 „

Gulathing Law (185)
Leysing .... 1 ring
Leysing's son . . 2 rings
Bonde . . . . 3 „
Odal-born man 1 . . 6 „
Lend-man and Stallare . 12 „
Jarl . . . . 24 „
Kmg • ¦ • • 48 „
These were the penalties paid by the person
inflicting the wound — i.e. three times his own rett — and
besides this he had to pay sdr-bot 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, Thehauid
throughout the Gulathing law the hauld, or odal- maifthe
born man, is taken as the typical tribesman
geld 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 foUowing : 2

His wer- *^ioal
tribesman.

y

Nu hever maor 6<5z mannz
vig vigit, vigr sunr faour, aeoa
facer sun, sena broker br6oor,
aeoa systkin eitthvert, seoa vigr
barn m6rior sina, aeoa mooer barn

Now if a man has done the
slaying of a madman, if a son
slays his father, or a father his
son, or a brother his brother or
any of his sisters and brothers, or

1 The hauld seems to have
been the same as the odal-
born man.

2 See also the Frostathing
Law IV. 31, in which in a similar
case the person is outlawed.

R

242

Scandinavian Tribal Custom.

sitt, f>a firi-vigr harm arve }>eim
er harm atti at taca. Seal sa pann
arf taca er nestr er j>a, oc helldr
seal konongr hava en hann. En
hann vaire i lande, oc gange til
skrifta, oo have sitt allt.

a child slays its mother or a
mother her child, then he forfeits
the inheritance he ought to take.
The one next to him in kin takes
that inheritance, and the King
shall have it rather than he. But
he shall stay in the land and be
shriven and keep all that is his.

Nowergeldwithin the
family.

The wer
geld of
the Fros
tathing
law of
later date
awarded in marks
of gold.

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 : —

Her hefr upp oc segir i fra, fvi
er flestum er myrkt oc pyrftu ]>6
marger at vita, fyrir fvi at
vandraaoi vaxa manna a milium
en Tp eir fverra er bse'Si hofou til
vit oc g6oan vilja, hvesso scipta
scylldi akveohum b6tum ef peer
ero dcemdar, fyrer Jrvi at fat er
mi meiri sior at anemna boetr,
hvesso margar merer gulls uppi
sculu vera epter farm er af var
tecinn, oc velldr J>at at marger
vito eigi hvat laga b6t er, er ]> 6 at
vissi, }>a vilia mi faer ]>vi una.
En Frostofings b6c soipter laga-
b6t hveriom epter sinum bur8 oc

Here begins and is told that
which to most is dark and yet
many had need to know, because
difficult matters increase among
men and those grow fewer who
both had the wits and the good
will for it, — how to divide the
fixed bdts (boetr) if they are ad
judged, for it is now more the
custom to fix the bdts, how many
marks of gold shall be paid on
account of him who was slain,
and the cause of that is that many
know not what the lawful b6t is,
and though they knew it, few will
now abide by it. But the Frosta-

The Norse Wergelds.

243

metoroi, en ecki hinum b6tum er
J? eir ofsa e5a vansa er i d6mum
sitia oc sattmal gera.

thing book divides the lawful bdt
to every one according to his birth
and rank, and not those bdts
(boetr) which they that sit in
courts and make terms of peace
put too high or too low.

of it in
silvermarks at

Here the writer clearly refers back to the ancient
Frostathing book as the authority for the ' lawful
bot,' but on examination he seems to add certain
additional bots 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, Division
ores, ortugs, and penningar. But when the items are °^,%l
added up, the total in silver divided at the ratio of r,l[ioof
1 : 8 brings back the result as nearly as may be to i : 8-
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 The group
to divide he first assigns 18 silver marks to Bauga men.aU8a
men (i.e. the near group of kinsmen of male descent
on the paternal side only), and then he adds half as
E 2

244

Scandinavian Tribal Custom.

The other much (i.e. 9 marks) to a group of Nefgildi-men l among
NefgFidi- whom are included, with others, kinsmen of descent
men' through females on both paternal and maternal sides.
So that these two groups of Bauga men and NefgUdi
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

1 The Nefgildi-men
slayer's mother's

include
the slayer's mother's father,
daughter's son, mother's brother,
Bister's son, father's sister's son,

mother's sister's sons, son's daugh
ter's son, daughter's daughter's
son, brother's daughter's son,
sister's daughter's son.

The Norse Wergelds. 245
law (clause 316, p. 104) there is a statement of Later
wergeld, avowedly of a late date and added under mathTen
the name of Biarne Mar%arson, who lived about ^lathins
a.d. 1223. And this, too, seems to belong to a
time when the amount of the wergeld was awarded
by some pubhc 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 MarSarson 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 brceftrungs
of the slain, but among them are included the sons of
concubines and of female first cousins. And after

246 Scandinavian Tribal Custom.
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 MarSarson 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.
Earlier We turn, then, from these later statements to what
of the seems likely to be an older statement of the Norse
Sw.atbinS wergeld, viz. that which commences at clause 218 of
silve,r . the Gulathing law.
marks and p
cows. It describes the division of the wergeld of a
' hauld ' or ' odal-born ' man, and it begins with the
explanation that the ' mannsgiold ' or wergeld de
creases and increases from this as other retts.
It describes the various amounts both in shver
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 1\ 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 — 2^ ores — is the one used in this older
description of the wergeld.
The wergeld according to this statement consists

The Norse Wergelds.

247

of bauga payments and upnam payments.
are received in three baugs or rings thus :-

The first

HofuH (head) baug, taken by
the son and the father of the
slain 
BrdOur baug, taken by brother,
or if none, by the son of the slain .
Brcefirungs baug taken by
the father's brother's son, i.e. first
cousin of the slain . . • .
To this is added for women's
gifts, i.e. the mother, daughter,
sister, and wife of the slain, or in
default to the son of the slain
Total

10 marks or 32 cows.

5 marks or 16 cows.

4 marks or 13 cows — £ ore.

The64 cows
of the
Baugagroup.

19 marks or 60 cows + 2 ores.

1 mark or 3 cows + £ ore.
20 marks or 64 cows.

After this statement is the declaration, ' Now all
the baugs are counted.'
A clause is here interpolated changing the point
of view so as to show how, and by whom on the
slayer's side the same three baugs were paid.

Nii seal vigande bceta syni
hins dauoa hafuohaug.
En br6oer viganda seal boeta
brceor hins dauoa br6o"or baug, ef
hann er til, ellar seal vigande
boeta. Nii seal brceorongr viganda
bceta brceorongi hins dauSa broeo"-
rongs baug, ef hann er til, ellar
seal vigande boeta.
Sa er sunr hins dauSa er viS
giolldum tecr, hvart sem hann er
facer seoa br6oer, aeoa hvigi skylldr
sem hann er.

(222) The slayer shall pay to
the son of the dead the hbfufo-
baug. The slayer's brother (if he has
one) shall pay to the brother of
the dead the brother baug ; other
wise the slayer shall pay it.
The brceorung of the slayer (if
he has one) shall pay to the
brosorung of the slain the orasS-
rungs baug ; otherwise the slayer
shall pay it.
He is [reckoned] the son of
the dead who takes the giold,
whether he is father or brother or
however he is related.

Then follows the declaration, ' Now the baugs are
separated ' (' Nii ero baugar skildir ').

/

248

Scandinavian Tribal Custom.

Women'sgifts.

1/

It seems clear, then, that the slayer was in the last
resort responsible for the whole of these baug pay
ments, 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 wiU be seen,
were limited to the nearest relatives on the paternal
side — fathers, sons, brothers, and first cousins —
with no descent through females, whUe the recipients
in the next set of groups or ' upnams ' include also
relations through females : but, again, only males
receive. There is, however, one exception. In clause 231
is the following : —

Nii ero konor fser allar er
sunu eigu til sakar, oc systr
barnbserar. fa seal feim ollum
telia sbc iamna, til Jiser ero
fertogar.

All those women who have
sons are in the sbk (suit), and
sisters capable of bearing sons.
They shall ah be held to have an
equal part in it till they are forty.

Evidently they partake, as under Cymric custom,
only in respect of possible sons who if born would
partake themselves. Indeed, the sons only appear in
the list of receivers and in no case the mother, except
among the women's gifts included as above in the
baug payments.

The Norse Wergelds.

249

Clause 224 describes the upnam set of recipi
ents as under. It will be seen that they include
descendants of great-grandparents, but no more
distant relations.

' Sac-tal of upnams or groups outside bauga men.'
1st upnam. The slain person's .

The
upnamgroup includesdescendants of
great-grandparents.

The slain person's

Father's brother (i.e. uncle).
Brother's son.
Mother's father.
. Daughter's son.
Each gets a mark from the slayer if a hauld be slain ; and this
amounts to 4 marks.
Ind upnam. , Father'sbrother'sson(orascVw?ig').Brother's daughter's son.
Mother's brother.
Sister's son.
SystUng (? Father's sister's son).
Each gets 6 ores from the slayer if a hauld be slain ; and this amounts
to 3 marks 6 ores.
Srd upnam. ( Mother's sister's son (systrung).
Broeorung's child.
Father's broeorung.
Mother's mother's brother.
Sister's daughter's son.
They get half a mark from the slayer if a hauld be slain
(probably \ mark each) : i.e. 2 marks 4 ores, making the total of
upnams 10 marks 2 ores.
Then follows the declaration, ' Now all the upndm Total
wergeld
men are counted. 30 marks
If we add up the amount of the two sets of pay- or96cows-
ments the result wiU be as foUows : —

The three bauga payments of near
relatives, with addition of women's gifts 20 marks or 64 cows.
The upndm payments within de
scendants of paternal and maternal
great-grandparents . . . . 10 marks 2 ores or 32| cows.
30 marks 2 ores or 96| cows.

250 Scandinavian Tribal Custom.
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 upndm men do the
same. Evidently this is the intention.
Wergeld Now if we may take the bauga payments and the
hauld at upnam payments as representing in intention 30 silver
200 gold marks or 96 cows, then, at a ratio of 1:8, the
soiidi, 30 silver marks equalled, in wheat-grains, exactly
100 cows.' 200 Merovingian gold solidi.1 And this may have
been the ancient wergeld of the hauld.
There is, however, in clause 235 a further pay
ment mentioned extending ' to the fifteenth degree
of kinship ' and amounting to about 1 mark and
3 ores. Bossibly (though I hardly think it hkely)
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 2-1 ores to the cow the wergeld would
be increased to 101^ 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 Boman
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 applica
tion of Boman 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
1 4608 x 30 = 138240, and this divided by 8 = 17280 w.g. of gold, i.e.
200 gold solidi of 86-4 w.g.

The Norse Wergelds. 251
further payments mentioned in the Gulathing are dis
tinctly 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 ' ad
ditional 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 thraUborn 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, step
father, 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.
Beturning, 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

Scandinavian Tribal Custom.

and upndm 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

Another statementmakes the
baugamen pay
is marks. - giold,' and it is added : —
En ef allt er af einum manni
hoggvit hond oc f6tr, fa. er sa
verri livande en dauor ; seal
giallda sem dauor se\

But if both hand and foot be
cut off the same man, he is worse
hving than dead, and is to be paid
for as if he were dead.

And then in the next clause, under the heading
' About Giold,' is the following : —

Nii ero giolld told i Gula;
giallda haulld xviii morcom logey-
ris. Nii scolo pecan giolld vaxa
oc sva Jiverra sem renter aorer.

Now shall be told payments in
Gula. A hauld shah be paid for
with 18 marks of lawful aurar.
Starting from this, the pay
ments shah increase or decrease
as other retts.

Now it would seem that this payment for the
death of a hauld was not the whole wergeld but only
the bauga part of it. No details even of the bauga
payments of eighteen marks are given in this clause.
It seems to be inserted in this place simply with
reference to the full limit of payments for injuries.
Liability for wounding, under Cymric custom, was
confined to the kinsmen of the gweiy, and so it may
well be that under Norse custom it was confined to
the bauga group.
But the amount in this clause is only eighteen
marks, while that of the bauga payments of the
wergeld we have just been considering, as probably

The Norse Wergelds. 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 Boman or
Merovingian marks of the earlier period.
The other statement alluded to is also a state- Another
ment avowedly of the bauga payments, and begins statement
with almost the same words, 'Now the giold for makesthe
. ° bauga
the hauld shaU be told.' In this case the details are payment
-i i -i -t i in i 18 or 20
given and the detailed payments add up between marks.
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 actuaUy in force. Little touches of pictur
esque detail seem to bring it into contact with actual
life, and to show how local custom might work out
a common object by its own peculiar method.
It meets us abruptly in clause 243 under the
heading ' On baugar,' and commences thus : —
Now the giold for the hauld shall be told —
6 marks (of 12 ells to the ore) in the head-baug,
4 marks in the brother' s-baug,
2J marks in the brcefirung's baug.
It then introduces quite another element, viz. the
tryggva-kaup (truce-buying).

Nii scolo fylgia tvau tryggva
kaup baugi hverium.
hvert seal eyrir oc fimtungr
eyris tryggva kaup.
En tryggva kaup seal fara
bauga manna i mellom.

Two tryggva-kaup shall go
with every baug.
Each tryggva-kaup shall be
1J ore. Tryggva-kaup shah go between
bauga-men.

In the next clause it is explained that this ' peace-
price' (sa?ttar-kaup) is paid when the kinsmen come

254 Scandinavian Tribal Custom.
together to make peace, and that three marks are
also paid as skdgar-kaup — ' forest price,' i.e. payment
to release the slayer from being a skdgar-ma'Sr, 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 ' broe'Srung 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 broe'Srung of the slain. And the
broe'Srung of the slayer pays a baug to the broe'Srung
of the slain and again two ' truce-prices,' one to the
son and the other to the brother of the slain. AU this
is for peace-buying (sa?ttar-kaup) when the kinsmen
are met together to make peace.
Then, in clause 245, the women's gifts are de
scribed. The slayer, his mother, his daughter, and
his wife each give a gift of 1^ ore to the wife, mother,
and daughter of the slain — making twelve gifts.
The sister of the slayer gives a half gift to the sister,
wife, daughter, and mother of the slain (two gifts),
and the slayer, his mother, wife, and daughter, each
give a half gift to the sister of the slain, making the
number of women's gifts sixteen in all.
The amounts thus stated add up as follows : —
Baug payments  12 marks 4 ores
6 truce payments .... — 7J „
Forest price  3 „ —
16 women's gifts . . . . 2 „ 3J „
18 marks 61* ores
The amount aimed at seems to be 18 marks (the
upnam payments being 9 marks), and yet the total is
stated as follows : —

The Norse Wergelds. 255
Now with baugar and with tryggvakaup and skdgar-kaup and
women's gifts it is 20 marks and 2g ores.
Absolute accuracy need not be expected, but there
must be a reason for the difference between eigh
teen and twenty marks — between the detailed pay
ments 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 acknow
ledged 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 1^- ore for the corresponding relative of the person
slain. Women's gifts were included in the bauga pay
ments in the other statement also.
The clauses relating to the bauga payments are
followed by three others, headed ' On saker,'tand the

256 Scandinavian Tribal Custom.
further recipents of wergeld, as before, seem to be
divided into upndms 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
upndms 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 caUed upndm
men.
Father's brother  12 ores
Brother's son  12
Brother by the same mother . . .12
Thrallborn son  12
Daughter's son  12
Mother's father ...... 12

72 ores = 9 marks.
So that the bauga and upndm payments — two
thirds and one third — added together once more make
a normal wergeld of twenty-seven marks, that is, thirty
of the Merovingian standard.
Then clause 247, ' Further on saker,' gives to —
Mother's brother  9 ores
Sister's son  9 „
Thrallborn brother  9 „
Father's sister's son  6 „
The whole And in clause 248 ' further on saker,' a thraUborn
2marks father's brother and a thrallborn daughter's son by a
^X kinborn father, take each a mark.
or 30 The traditional wergeld seems, therefore, once
Roman ° '
marks. more to be 27 marks of Charlemagne or 30 Mero
vingian marks, and the additional payments appear to
be sakaukar. But the upndm group in this case
includes the brother by the same mother and the
thrallborn son, leaving outside as sakaukar the

The Norse Wergelds. 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 Payments
attempt either to explain, or to explain away as of no s^ers
moment, the variations in the persons included under additional
± to secure
the various schemes in the groups of bauga and safety, and
„ ., ,. , -,-, , . varied
nefgildi or upnam men. Even such a question as locally.
that of the exclusion from the upndm group of the
mother's brother and the sister's son, to make way for
the iUegitimate half-brother and thrallborn son, is not
necessarily to be disposed of as a later alteration in
favour of those of iUegitimate 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.1 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 Vinogradoff2 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

1 The following is from the
Venedotian Code, i. p. 179. ' The
ecclesiastical law says that no
son is to have the patrimony but
the eldest born to the father by
the married wife : the law of
Howell, however, adjudges it to
the youngest son as well as to the
oldest (i.e. ah the sons), and

his illegal act is not to be brought
against a son as to his patrimony.'
Bastards were not excluded till
the Statute of Rothllan.
2 'Geschlecht und Verwandt-
schaft im alt - norwegischen
Rechte,' in the Zeitschrift fur
Social- und Wirthschaftsge-
schichte, vol. vii. (Weimar). To

decides that sin of the father or I this essay I am much indebted.

258 Scandinavian Tribal Custom.
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 upndm 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 weU
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 upnam payments. This seems to be
strong evidence that, although the persons forming
the groups may have differed, the two groups formed

The Norse Wergelds.

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 foUowed by
another third of nefgildi or upndm 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 upndm 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 Wergelds
wergeld of the hauld, then, recurring to the repeated several
statement in the Gulathing law that the wergeld of gra?e,s of
° o social
the hauld being told, the wergelds of others ' varied rank.
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 : —

-

Eett in
silver ores

Wergeld in
silver ores

Wergeld in
cows

Leysing before freedom ale .
„ after ,, ,, •
Leysing's son ....
A'r-borinn or iEttborinn-man
Hauld or Odal-born

4 68
12 16
24

40 6080
120160
240

24 or 25
3248 or 50
6496 or 100

260

Scandinavian Tribal Custom.

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 inter
esting 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 1 878 and entitled ' Die Freigelassenen
nach altnorwegischem Bechte. '
Although tribal custom, viewed as we view it
fntn'pra'nk after tne acceptance of Christianity, may not be alto
gether what it was originaUy in its actual working,
yet still it is worth while to seek for the principles
underlying the separating lines between social con
ditions 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.

Grades of

in the
church yard.

V

Kirkiu garoe er skipt 1 fi6r-
Songa til griseftar. Skall grafua
lfenda nienn austan at kirkiu oc i
landsuSr undir vxa [v.r. upsa]
dropa, ef fieir reigu lut i kirkiu
gi^ero*. En ef J>£eir asigu ceigi lut
i kirkiu gitert5, fa skullu J>»ir

The churchyard is divided into
four quarters for burial. Lend-
men shall be buried to the east
and south-east of the church, under
the eaves-drop, if they have taken
part in the building of the church.
But if they have not done that,

Grades in Social Status.

261

hggiai|bonda legho, fa, skall grama
hauldzmen oc f aeira born.

En nest kirkiu garSe, fa skall
grafua hion manz, oc fa menn er
rekner ero at siofuar strandu oc
hafua harskurSi noroena. En ef
maSr lasggser man i frials-giaefua
lego, sffickr vj aurum. En ef
maor grasfuer frials-giffifua i lcey-
singa lego, sseckr xij aurum.
Grasfuer Iceysingia i hauldmanz
lego, saeckr iij morkum.

they shall lie in the burial place
of a bdnde. Next to them shah
be buried haulds and their
children. And next to the churchyard
wall shall be buried the servants
(thrahs) of a man, and those who
are cast upon the sea shore and
whose hair is cut in the Norwegian
manner. If a man buries a thrall
in the burying-place of a frialsgiaf,
he is liable to pay 6 aurar. If a
man buries a frialsgiaf in the
burial-place of a leysing, he is
liable to pay 12 aurar. If he
buries a leysing in the burial-
place of a hauld, he is liable to
pay three marks. (Borgarthing
law 13.)

Beferring to the gradations of rett, it will be seen The two
that there are apparently two classes of leysings, ieysmgs°or
whose social condition was next above the thrall at £reedmenbefore and
the bottom of the ladder. after
This was first made clear by Konrad von Maurer. ¦ freedom
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
stiU so far the property of his master that his
children did not inherit his goods.
his master.

They belonged to

Nii ero brosor tveir tedder
upp anauogir at eins mannz, oc

If two brothers are brought up
as thralls at one man's house, and

262

Scandinavian Tribal Custom.

ero f eir bseSe brceor oc fostbroeSr,
oc leysasc feir undan dr6tne
sinum, oc firrasc eigi fostr, eigu
saman verc oc orco, fa kemr
hvartveggia f eirra til annars arfs.
Born feirra koma eigi til, nema
feir geri frselsis 61 sitt.

The' making
freedom ale,' first
step to
freedom.

are both brothers and foster
brothers, and they are freed by
their master and continue in
fosterage, and have their work
and employment together, then
either of them inherits from the
other. Their children do not in
herit from them unless they make
their freedom ale. (Gulathing,
65.)

This passage shows that the link of blood-rela
tionship 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.

Nii vill leysingi raoa kaupum
sinum oc kvanfongum, fa seal
hann gera frselsis ol sitt, friggja
salda 61 hit minzta, oc biotia
skapdrotne hans til meS vattom,
oc biofia eigi sokunautum hans
til, ok sissa hanom i ondvege, oc
leggia . vi . aura i skaler hinn fysta
eftan, oc bi6oa hanom leysings
aura. Nu ef hann tecr viS, fa er
vel. En ef hann gefr upp, fa er
sem golldet se\

Ef frsell kemr a, ioro1 eSa byr,
fa seal hann gera frelsis 61 sitt,
hverr maor niu rnsela 61, oc scera
a veor. iEtborinn maor seal
hofuS afscera, en scapdrottinn
hans seal taca halslausn af liaise
honum. Nuvihscapdr6ttinnhans
leyfa honum at gera frelsis 61

(Gulathing law 62.) If a leys
ing wishes to have control of his
bargains and his marriage, he
shah make his freedom ale out of
at least 3 sievefuls of malt and
invite his master to it, in the hear
ing of witnesses, and not invite
his master's foes, and seat him in
the high seat, and lay 6 aurar in
the scales the first evening [of the
banquet], and offer him the 'leys-
ing's fee.' If he takes it, that is
well. If he remits the sum, it
is as if it had been paid.
(Frostathing law IX. 12.) If a
thrall takes up land or sets up
house, he shall make his freedom
ale, every man of 9 niaelar [ = li
sievefuls of malt], and kill a
wether. A freeborn man shall
cut off its head, and his master
shall take the ' neck-release ' off

Grades in Social Status.

263

sitt, fa seal hann beioa hann meS
vatta .ii. at hann megi gera frelsis
61 sitt, oc biotSa honum meS . v .
{fimta) mann til oldrs fess er
hann gerir frelsis 61 sitt [....]
fa seal hann fo gera, oc lata
ondvegi hans oc cono hans kyrt
liggia.

his neck. If his master will allow
him to make his freedom ale, he
shall ask his leave to make it, in
the hearing of two witnesses, and
invite him and four with him to
his freedom ale. [If they do not
come] yet he shah make the ale
and let the high seat for his
master and his master's wife stand
empty.

A master might dispense with this formality.
He might take his thrall to church, or ' seat him on
the kist,' and if then he proceeded formally to ' free t/
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 Social
rights the ceremony of ' making freedom ale ' or its s'at"s
substitute produced. leysing.
The leysing was still unfree in the sense that he
could not leave his master.
the Gulathing law (67).

The following is from

Nii ferr leysingi or fylki firi
litan raS drottins sins, oc aflar ser
far fiar aeoa kaupa, fa seal scap-
drottenn fara efter me<5 vatta.
Ef hann vill aftr fara, fa er vel.
En ef hann vill eigi aptr fara, fa
leiSi hann vitni a, hond hanom at
hann er leysingi hanns, oc foeri
hann aptr hvart sem hann vill
lausan aeoa bundinn, oc setia hann
i sess hinn sama, far sem harm
var fyrr.

Now a leysing leaves the
district without the advice [or will]
of his master, and earns property
or concludes bargains; then his
master shah go after him with
witnesses. If he is willing to
come back, that is well. If he -is
not willing, he [the master] shall
call witnesses jthat he is his leysing,
and bring him back, fettered or
unfettered, as he likes, and set
him in the same seat that he had
formerly.

But, on the other side, the master might not sell
even a thraU ' out of the land ' (F. XL 20) ; so that
probably he could not turn his leysing adrift at his
pleasure.

264

Scandinavian Tribal Custom.

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.

Theleysingmust now
keep his
children.

En ef hann gerer einnhvern
lut f eirra, fa seal harm fara aftr
i sess hinn sama er hann var
fyrr, oc leysasc f eSan veroaurum.
Fe sinu hever hann oc firigort.

Should he make himself guilty
of any of these things, he shah go
back to the seat in which he sat
formerly, and buy himself free out
of it with money to his value.
And his property is forfeited.
(G. 66.)

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 (a?tt-borin)
woman, and they afterwards separate, all the children
go with her. He, not being kin-born, has no kindred.
She being kin-born, her kindred have rights over her
and obligations as to her children.

En ef hon verSr fyrr daurj, fa
scolo born 611 hverva til faour sins
aftr, oc eta fe hans meoan fat er
til ; en fa er fat er allt etet, fa
scolu born 611 aftr hverva i hit
betra kyn, en hann undir scap-
dr6tten sinn.

If she die first, ah the children
shall go back to their father, and
eat his property so long as it lasts,
and after it is ah eaten up, ah the
children shah go back to the
better kin, and he back to his
master.

If one leysing marries another, and both father
and mother have made their freedom ale, the chil
dren of the marriage inherit from both. This is the
beginning of the rights to inherit. But it is accom
panied by the obligation to keep the children, who

Grades in Social Status.

265

En ef f au verSa at frotom,
fa, ero fat grafgangsmenn. Seal
grava grof i kirkiugaroe, oc setia
f au far i, oc lata far deyia. Take
skapdrottenn fat 6r er lengst
livir, oc fceSe fat sioan.

are no longer thralls of the master but leysings like
their parents.
What happens, then, if the parents faU into poverty
and cannot keep their children ? Is the master to
keep them or are they to starve ?
(63) If they come to extreme
want, they are grafgangsmenn.
A grave shah be dug in the
churchyard, and they shah be put
into it and left to die there. The
master shah take out the one who
lives the longest, and feed that
one thereafter.1
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 inheri
tance ' 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 descend
ants. 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

Childrencould
inherit
from him,
but no
other kin.

\S

1 Some authorities infer from
this that the parents alone were
put in the grave. K. von Maurer
thinks only the children, and

apologises for it as ' nur eine aus
grauer Vorzeit iiberlieferte Anti-
quitat.'

266

Scandinavian Tribal Custom.

generation died without kin the inheritance in this
extreme case went to the descendants of the master of
the first leysing ' to the ninth knee ' rather than pass
by failure of kin to the king.

Leysings erfS . . . seal taca
til niunda knes, fyrr en undir
konong gange. Degar leysings
sun tecr efter faour sinn, fa take
hverr efter annan. Nii verSr far
aldauoa arfr i leysings kyni, oc
er engi sa maor er far er i erfoa
tale viS hann er andaor er 6r
leysings kyninu, fa seal hinn er
or skapdr6ttens kvisl er, taca til
niunda kn£s fyrr en undir konong
gange, f6 at sa se hinn atte er
andaSr er fra leysingjanom.

Further steps into
freedom at
stages of
three ge
nerations.

(G. c. 106.) A leysing's in
heritance shah be taken to the
ninth knee before it fahs to the
king. When a leysing's son takes
after his father, then let one take
after the other. If in a leysing's
kin there comes to be an ' all-
dead ' inheritance, and no one
has inheritance-right after the
deceased man of the leysing's kin,
then one of his master's kin shall
take to the ninth knee before it
fahs to the king, even though the
deceased man be the eighth from
the leysing.

Thus we seem to see the family of the leysing
who had ' made his freedom ale ' graduaUy growing
up into a kindred in successive stages until in the
ninth generation a kindred of leysings had been fuUy
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 de
scendants 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

Grades in Social Status. 2G7
inheritance only of his son and daughter, and of his
own freedman. The sons of this leysing take inheri
tance from six persons, viz. father, mother, sons, At the
daughters, brothers, sisters, and, seventhly, from any Oration
freedman of their own. the Jord-
ship over
So shall the son of a leysing tbem
take, and his son's son [grandson]
and his son [great-grandson] . . .
and daughter and sister like son and
brother, if there are none of these.
Each of these shall provide for
the other.

Sva seal sunr leysingia taca
oc suuarsunr oc f ess sunr . . . oc
sva dottir oc systir sem sunr oc
broSir, ef feir ero eigi til. Oc
sva seal hvart f eirra hyggia fyrir
oSru.

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 Analogy of
Cymric gweiy or family of descendants of a great- Cymric
grandfather with rights of maintenance under the sweiy.
rules of 'tir gwelyaue' and mutual liabilhy. 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
weU 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 aU 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

Scandinavian Tribal Custom.

The lord
ship over
themceases when a
full kin
dred is
formed.

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 drborinn or
cettborinn men, i.e. men born in a kindred, with a rett of
sixteen ores. They can now boast of a fuU leysing
kindred. Their father, grandfather, and great-grand
father were born in a kindred, and they have now
full rights of inheritance. The master and his de
scendants have no further hold on them or obliga
tion for their maintenance. Any lapsed inheritance
now goes direct to the king.
The drborinn or a?ttborinn 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 wit
nesses ' that he can count four of his forefathers as
drborinn men and himself the fifth.' That is, he
shows that his great-grandfather was a man with an
cett or kindred. If he can prove this he is free from
any claim in regard to his leysing descent.
En ef sa, callaz arborinn er
fyrir soc veror, fa teli hann fi6ra
langfeSr sina til arborinna manna,

en sialfr hann hinn flmta, oc hafi
til f ess . ii . biianda vitni arborinna.
En ef hann er sva liolauss at
hann fser fat eigi, oc hefir f6
fessa vorn fyrir ser, fa sanni sett
sina arborna meS guSscirslum.
En ef hann verSr scirr meS iarne
eoa vitnisburo1, fa gialldi hinn
honum fulrdtti, en biscopi eioa
sect. En ef hann fser sic eigi
scirt, fa hefir hann fyrirgort i6
sinu ollu viS scapdr6ttin, oc liggia

(Frostathing, IX. 10.) But if
the accused calls himself drborinn
let him reckon up four of his
forefathers as drborinn men, he
being the fifth himself, and have
for it the evidence of two arborinn
householders. But if he is so
supportless that he does not get
this, and yet sets up this defence
[viz. that he is drborinn], then
he shall prove his kin to be
arborinn by ordeal. And if he is
cleared by iron or evidence, the
other shall pay him full atone
ment, and to the bishop an oath

Grades in Social Status.

269

a, .iii. merer sylfrmetnar, nema
hann launi af seV. Oc sva, um
vanar maun.

fine. If he cannot clear himself,
he has forfeited ah his property
to his master, and is liable to pay
three marks in silver, unless he
work it off. The same applies to
a vanar mann [man of hope, i.e.
the higher class of leysing].

So far the conclusions drawn from the laws re
specting the leysing do not vary much from the
views expounded by Dr. Konrad von Maurer in his
' Die Freigelassenen nach altnorwegischem Bechte,'
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 apphed 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 succes- The
sive generations, during which some kind of shadowy h^ve"83
lordship seems to have prevailed over the family of become a
leysings, they must generally have multiplied into group, and
considerable numbers, and that the descendants of deseend-
the master of the leysing ' who made freedom ale ' master the
must during the same period also have multiplied ; also-
and further when we consider that the descendants

270 Scandinavian Tribal Custom.
of the leysing were in some sense, it would seem,
adscripti glebce, we have to recognise not merely a
relation between individuals but something approach
ing 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 land
owners, with complicated tribal rights among them
selves. 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 graduaUy in successive stages
growing into freemen.
Before we can fuUy 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.

Odal Landholding.

271

IV. THE CLASSES OP FREE MEN AND THEIR RELATION
TO LAND.
Following again the clue of the statements of the
' personal right ' of the different classes, and commen
cing with the bonde 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 bonde is the odalman or odalborn man or The odai-
hauld, whose wergeld of 96 or 100 cows was taken hauia°r '
as that of the full and typical freeman.
Now, in the Frostathing law there is a statement
as follows : —

Engum manni ver&r iorS at
oSali fyrr en . iij . langfeSr hafa
att, oc kemr undir hinn . iiij . sam-
fleytt.

(XII. 4.) No man's land be
comes an odal to him until three
forefathers have owned it and it
fahs to the fourth in unbroken
succession.

And again in the Gulathing law is the following ;-

Nu seal fser iarSer telia er
ofSrlom scolo fylgia. Sii er ein er
ave hever ava leift.

(270.) Now shah the lands
be told that are odal. The first
is the one which grandfather has
left to grandfather.

The odalborn man inherits land from his grand- His grand
father's grandfather. The son of an odalman who *rand-S
claims odal as odal by inheritance counts four or five ffth,er h,ad
J , ' the land.
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 mar
riage of the claimant are excluded as ineligible, the
calling of witnesses all to be odalborn men of the

272

Scandinavian Tribal Custom.

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.

The odal-
men were
of full kin
dred on
the land.

/

peir scolo telia til langfeora
sinna . v . er att hava, en sa hinn
setti er basSe atte at eign oc at
oSrle.

(266.) They [the men who
claim odal] shah count five of
their forefathers who have owned
[the land] and the sixth having it
both in ownership and 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 originaUy of
100 cows — they were not only men of fuU kindred
whose fuU pedigree of freedom went back the neces
sary nine generations, but their grandfather's grand
father 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 depen
dent 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 concep
tion 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

Um dials iar&er. Nii seal
fser iaroer telia er oorlom scolo
fylgia. Sii er ein er ave hefir ava
leift. Sii er onnur er gohden er i
mannsgiohd . . . fser scolo 6orlom
fylgia, oc ahar fser er i 6oals
skipti hava komet meS braeorom
oc meS fraendom f eim [sic]. Allar
aSrar aurum.

and sub
ject to
family divisions.

Odal Landholding. 273
the heirs of a single holder, but something more like The odal
what took place between the group of kinsmen in held by3
the case of the Cymric gweiy and ' tir gueliauc' andTub
How otherwise can this clause be read ? iect t0
family
(G. 270.) Of odal lands. Now
the lands shah be told which are
odal. One is that left by grand
father to grandfather. Another
is that paid as wergeld. . . .
These shah be odal and ah those
which have come under odal
division between brothers and
their kinsmen. Ah other lands
shah be counted aurar [money].

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 The odal-
' go to the " thing " in autumn and offer it to his odal- must /
sharers ' (odalsnautr, one who has odal-right to land t^gaie
in common with others). (G. 276.) j>^dal
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
T

274 Scandinavian Tribal Custom.
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
The odal- here again there may be something very much hke
have the Cymric gweiy and to suppose that marriage was
kleplt*0 forbidden within the gweiy, e.g. between second
cousins, and that the odal sharing continued so long as

in the
family
and to the gweiy held together.
prevent its
passing to ,
females. Nu skipta broeor tveir 6orlom
sin a mihi, fa seal f ingat hverva
1 fa, kvisl 6obl, sem loten ero,
baefti at boSom oc at abiio", bi6oa
f vi at eins i aSra kvisl ef fa
seeker frot ssoa aldauoaarfr verSe.
En eigi skihasc 6Sol meS f eim at
hehdr fyrr en hvartveggia ma eiga
dottor annars.

If two brothers divide their
6oals between them, the oSals
shall pass into the hands of the
branch which receives them by
lot, in respect both of right of re
demption and of occupation ; they
shall only be offered to the other
branch if this one comes to utter
poverty, or the inheritance is left
without a legal heir. Yet the
latter does not lose its right to
the orials until each of the two
can marry the other's daughter.

If the family of one of the brothers sinks into
utter poverty or is left without a legal heir, the
other family have the right of redemption and
occupancy ; and yet the poverty-stricken or heirless
branch does not lose its rights to the odal altogether.
There is still the chance that its rights may be
restored when a son on each side can marry a
daughter of the other side.
There is a further clause in the Gulathing law
which provides that when land falls to a woman the
men of the kindred, ' if their relationship be so close
as to be nefgildi or bauggildi' — that is, as we have
seen, paternal and maternal relations descendants of
great-grandparents — have a righ to redeem it from

Odal Landholding.

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).

Nii veror kona baugrygr,
verSr hon bseSe arva 6oals oc
aura, oc a, engi maor undan henne
at leysa. Nii ero fser konor er
6oals konur ero, oc 6orlom scolo
fylgia, dotter oc systir oc faSur
6ystir oc broobr d6tter oc sunar
d6tter. paer ero baugrygiar tvser,
d6tterocsyster. Pser scolo baugum
bceta oc sva, taca sem karlmenn,
oc sva, eigu fasr boS a, ioroiim
samt sem karlar. Nii ero fser
arvar fatSur sins. Nii elr onnur
dottor eina, en onnur sun einn,
fa seal sunr leysa undan frend-
konom sinum sem log ero til. En
ef enn skiptizt um, oc eh hon
sun en feir dcetr, fa scolo feir
leysa tmdan f eim shcum aurum
sem hann leysti undan mceSr
f eirra, oc seal fa hggia ioro1 kyrr
far sem komin er. pa er iorS
komen frysvar undir smiS oc
undir snsehdo.

If a woman is a baugrygr [an
only daughter who in default of
heirs male could receive and pay
wergeld] she inherits both odal
and aurar and no man requires to
redeem it from her. The women
who are odalwomen and take
odal are daughter and sister and
father's sister and brother's
daughter and son's daughter.
Daughter and sister are two
baugrygiar. They shah pay and
take baugar as males, and they
may redeem land as men. Now
if they are their father's heirs,
and one of them gives birth to a
daughter and the other to a son,
the son shah redeem [the odal]
from his kinswomen as the law
is. But if things turn round again,
and she has a son and they
[masc] have daughters, they
[masc] shah redeem it from them
[i.e. from the daughters] for the
same payment by which he re
deemed it from their mother, and
the land shah then remain where
it is. Then the land has passed
three times under the spindle.

Now when these remarkable survivals of tribal These are
-, . . -ii marks of
custom are found still remaining in the laws as to early
odal and odal-sharers and the right of kinsmen who £mel.
would have to pay wergeld to redeem odal, so that it BhlP-
may be kept within the ring of odal-sharers, they can-
T 2

276

Scandinavian Tribal Custom.

The
solidarity of the
familyshown
both by
odal-shar-ing and
wergelds.

not 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
whoUy obsolete, even though society may have passed
onwards some stages towards individual landowner-
ship of the more modern type.
And when we consider the sohdarity 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 to
gether with the liability of individuals to take their
share in the payments for which their kindred is
responsible, corresponds to the solidarity of odal land-
holding, 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 l ancient custom,

1 SkSne, being only divided
from the island of Zealand by the
Sound, during the Viking period
belonged to Denmark. It after

wards became a Swedish province,
being finally ceded by Denmark
in 1658.

The Lex Scania Antiqua. 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 The Latin
in Latin and the other . in old Danish. They difier Danish
considerably and are certainly not translations one g^°™ of
of the other, though an older text may have been the law-
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
Boman law it may be gathered that Scanian custom
required for him more explanation than the Danish
writer deemed it necessary to give.1
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

1 The various views upon the
relation of the two versions to
each other are very usefully dis
cussed in the introduction to
M. Beauchet's Loi de Vestro-
gothie . (Paris, 1894), pp. 67-75. j Lund, 1859
The Latin version was published i

in 1846 at Copenhagen as Vol. I.
of the Samling af Danske Love
and both Latin and Danish
versions in Dr. Schlyter's Corpus
Juris Sue-Gotorum antiqui,

278

Scandinavian Tribal Custom.

When
there was
arrangement on
marriagewidowtook half
of their
joint propertyif no
children.

innovations in the direction of individual ownership.
In this they resemble the Lex Salica. StiU if famUy
holdings more or less on the hnes of the Cymric
gweiy, 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 Boman 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 chhdren of

the marriage.
Omnia que in hereditate sunt
mobiha, vel se moventia,1 vel im-
mobilia, precio tempore matri
monii comparata, equis sunt
partibus dividenda, medietate
heredes defuncti proximos cum
prediis que propria ipsius fuerant
et uxorem altera cum suis prediis
contingente. . . .

All things in the hereditas
which are moveable or cattle or
immoveable, brought in by value
fixed at the time of the marriage,
are to be divided in equal parts,
one part appertaining to the next
heirs of the deceased [husband]
with the lands which were his
own, and the other part to the
wife together with her lands.

This clause may very possibly represent an
extension of the rights of a childless widow beyond
what tribal custom may have originally given her.
But certainly the fact that under Scanian law the
childless widow was entitled to half of what by compact
at the time of the marriage had become the joint
property of husband and wife, while the other half
went to the husband's next heirs, is good evidence

See Du Cange, s. v. ' Moventes ' =pecudes.

The Lex Scania Antiqua. 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 aUowed to take her half share
with her away from her husband's kindred.
Chapter HI. refers again to a wife's property and Family
adds important information. It brings before us a v°gfe™ sin
family group with something like a family holding. jatenfraigd'
And it becomes inteUigible only, I think, when pater- _
approached from this point of view.
Into this family group a wife has been brought
apparently without the special ' definition ' or arrange
ment. 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 pater
familias 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

Scandinavian Tribal Custom.

The chapter is as foUows (divided into sections
for convenience in comparison of the Latin and
Danish texts) : —

De bonis avitis que portio
contingat nepotes post obitum
filiifamilias. (1) Filiifamilias1 in sacris
paternis cum uxore constituti, si
sine diffinicione certe quantitatis
bonis patris addiderit bona, que
ipse habuit, cum uxore, quot-
cumque fuerint filii de communi
substantia, eciam prediorum post
contractas nuptias comparatorum,
cum avo et aliis consortibus post
obitum patris viriles et equales
accipientporciones, (2) perpriorem
gradumab aliis prediis excludendi.
(3) Si vero, in mansione patris,
bona, que habuit cum uxore,
fuerunt diffinita, ilia sola, si
vivente avo pater obierit, filii,
quotcumque fuerint, obtinebunt.

Of the grandfather's property
what portion goes to the grand
children on the death of afilius-
familias. (1) If a filmsfamilias esta
blished with his wife in the
paternal rites shah,without defini
tion of the exact quantity, have
added to property of his father
property which he himself had
with his wife; then, however
many sons there may be, they
shall, after the death of their
father, receive equal shares per
capita with the grandfather and
other co-sharers in the common
substance even of lands acquired
after the marriage was contracted,
(2) they having to be excluded
from other lands by the prior
grade. (3) But if in the mansio
of his father the property which
he had with his wife, had been
defined, that alone, if the grand
father was alive when the father
died, shall go to the sons, however
many they may be.

The Danish text (I. 5) is as follows : —

Vm bondae sun foroer kono sina
j bo moeth faf oer sinum.
(1) Far bondse son konu oc
foraer hanae j bo mseth fafur
sinum, oc aflaer barn wifser hana
oc lasghs aey fselegh therse i
msellin, um tha dor bondans son,

his his

If a bonde's son brings
wife into the house with
father. (1) If a bonde's son gets a
wife and brings her into the house
with his father and begets a child
with her and no partnership is
made between them,2 if the

' Filius-familias ' in another

MS.

2 As to the fadagh or partner
ship between husband and wife,

The Lex Scania Antiqua.

281

tha taki all hans born fullan lot
seftir therse faf aer sem wael j kopse
ionh sum j bolfaa. (2) Mn af
hans fsethrinis iortho fa the sey
wattae mer aen han will giuae them.
(3) lseghs faelagh, tha fa the sey
mer aen han atte j bo.

bonde's son dies, then let all his
children take a full lot after their
father as well in land purchased
as in moveables. (2) But of his
[the bonde's] father's lands they
get not a whit more than he will
give them. (3) If partnership
is made, then take they no more
than he [their father] owned in
the house.

This clause, in both the Latin and the Danish ver
sion, 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 part
nership as joint property of the husband and wife if no
separately from the property of the family group ment on
represented by the grandfather. wife's186
If not so defined, it became apparently under property
. merged
ancient custom part of the common family property into the
and so divisible after the grandfather's death among stockf
aU 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.

see the Gulathing Law, 53. The
word fcelagh seems to be equiva
lent to the ' definitio ' of the Latin
text, the definitio of the property
being made at the time of the
marriage. The word seems to be

allied to the English word 'fellow
ship.' See Skeat, sub 'fellow,'
who refers it to Icelandic ' felag,'
literally ' a laying together of
property.'

282 Scandinavian Tribal Custom.
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.'
There was The answer is that the parents' property does not
cession by go exclusively to their children as it would have
tationto a done if it had been defined and separate property.
deceased it has become merged in the family property, and
during the there is no sharing of this tiU the grandfather's death.
father's But apparently by a compromise, due probably to
lifetime. recent legislation, they are aUowed on their fathers
death, according to the Latin text, to take equal
shares in his property per capita ' with the grand
father and other consortes,' or, according to the
Danish text, a ' fuU lot ' in it. We are not told
who were the ' consortes ' with whom and the grand
father 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, pro
bably 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 (ilia sola), would go to
the children of the marriage at their father's death

The Lex Scania Antiqua. 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 Permis-
conferred by a father upon the sons of a deceased thegrand-
son during the lives of the other sons, their uncles.' j^esrUg°
The text is as foUows : — cession to
a deceased
It is lawful to every one after ?2nf .
the death of a son to confer upon
a grandson, the son of that son,
whatever would have been due to
the son had he lived.

Licet cuique post mortem filii
quantum ipsi deberetur si viveret,
ejus filio nepoti conferre.

This seems to be a special permission to the grand
father during his life to mitigate the injustice of the
customary rule excluding grandchildren from suc
cession 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 XL opens with the foUowing general
statement, there being in this case no question of a
marriage or a wife's property.

Patre superstite defunctus
filiusfamilias nullum habet, ac si
nunquam fuisset genitus, suc-
cessorem.

The father surviving, the dead Otherwis
filiusfamilias has no successor, n° succes-
as if he had never been born. ?10n 8lven
by custom.

284

Scandinavian Tribal Custom.

Both in
Norse and
Scanian
custom originallyon a son's
death his
share in
the odal
merged in the
commonstock.

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, foUowing the example of Boman
law, the emancipation of sons was admitted.
Chapter XL proceeds, after the initial sentence
above quoted, to teU what happened in the case of
the death of an emancipated son dying without
children. But this does not concern us.
It may be wrell before passing from the considera
tion of these clauses of the Scanian law to bring into
notice a short isolated clause from the Gulathing
law, which seems to accord with them, and so to
connect the Scanian rules of family holdings with
somewhat similar rules as to the Norse odal-sharing.
The denial of the right of representation in both
Scanian and Norse ancient custom suggests that a
common principle may underlie the custom in both
cases. The clause of the Gulathing law (294) is as
follows : —

Nu ero broeor tveir oc andast
annar fyrr en faSer f eirra oc livir
sunr efter hinn dauoa. pa seal
hann fann lut leysa oorla at
fimtungs falla, undan faour breeor
sinum, sem faour hans storj til

Now there are two brothers
and one of them dies before their
father, and a, son lives after his
death. He shall redeem from his
father's brother, at one fifth less,
that part of the odal to which his

The Lex Scania Antiqua.

285

efter faour sinn. En eigi ma hann
fyrr leysa en faoiir fatier hans er
andaor.

father was expectant heir after his
father. But he may not redeem
it till his father's father be dead.

In this case, as before, there are living a grand
father 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 represen
tation 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.1
These and other innovations may have been the The new
result of a new sense of justice brought in with Imend°
Christianity or under the influence of Boman law. The
question for us is the meaning of the ancient custom.
And we are brought back to the point that in so far was.
as the family group more or less may have resembled
the Cymric gweiy, 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

tribalcustom show what
it once

1 See Untersuchungen zur
Erbenfolge <£c, Julius Ficker, ii.
p.143 : ' GulathingsbuchundFros-

tathingsbuch kennen keinen
Eintritt der Sohnessohne in das
voile Becht des Parens,'

286 Scandinavian Tribal Custom.
undivided equal shares, but stiU as the representative
members of the original gweiy 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 naturaUy be regarded as pre
ferring these nephews to their own sons. The rights
of aU the members of the ' lower grade ' wiU come in
time when all of the ' prior grade ' are gone and the
grandsons share equally per capita in the famhy
Thus the property. In the meantime the sons of deceased
lawsthrow parents, like those whose fathers are ahve, must wait.
Norse°odai ^° ^ may ^aye ^>een under ancient custom. But in
holdings, course of time family ties weaken and individual
They were . ; , . . ,
family rights grow stronger in national feehng, as we have
mgs' 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 aUowed 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

The Lex Scania Antigua.

287

recognise very similar tribal principles at the root of
them both.

FinaUy other clauses in the Scanian law may be
aUuded to as pointing to the common liability of the The pater
famUy group, i.e. of the paterfamilias and others ' in InTthose
communione ' with him.
Chapter IX. is as foUows : —

m com
munionwith him.

Universos contingit de com-
muni consortio quicquid vel culpa
amittitur vel industria conquiritur
singulorum.

As regards the common consor
tium whatever is lost by the fault
of or acquired by the industry of
individuals concerns all.

And in Chapter LXXXVII. it is enacted that if
a person denies that he is in possession of a thing-
stolen and if afterwards upon scrutiny it is found in
his house, double the value of the thing stolen is to
be taken, ' not only from the portion of the pater
familias, but also from the common property (de bonis
communibus), however many there may be with the
paterfamilias in communione.'
And the reason stated confirms the prevalence of
family holdings of the kind already mentioned.
The double value is to be taken,

. . . non de sola patrisfami-
lias porcione sed de bonis com
munibus quotcunque fuerint cum
patrefamilias in communione.
Nam cum omnes lucrum re-
spicerent in detentione non est
mirum, si dampnum in ejusdem
rei contingat omnibus restitutione.

. . . not from the portion of
the paterfamihas alone, but from
the common property, however
many there may be with the
paterfamilias im, communione.
For since all expect gain from the
detention [of the thing stolen] it
is not strange if all sustain loss in
its restitution.

The paterfamilias in whose house the stolen
property is found is evidently himself a member of a

swearers.

288 Scandinavian Tribal Custom.
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.
The resort In Chapter XCIX. the ordeal of hot hon is
ordeal if described as having three forms : (1) that of walking
110 co" 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 tiU 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 abohshed in
a.d. 1215.1
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 sohdarity of the family
group in Scandinavian society. But at the same time
it shows that in Scandinavia, as elsewhere, famUy
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. 1 Beauchet, p. 60.

The Lex Scania Antiqua. 289
In Chapter XLIII. it is enacted that the amount The
to be paid for homicide is not to exceed 15 marks of wergeld.
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 How
from his agnates, and finally the third and last from divided.
his cognates. Then it proceeds to say that, as ex
cessive 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 XLVH. it is stated that accord
ing 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 Later
version and s. 84 of the Danish version that special cations.
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
caUing upon them for their portion, which was called
the cettosbot. He then was to coUect together his
father's friends and compute with them what each
u

290 Scandinavian Tribal Custom.
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 pay
ments 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 hable
to the vengeance of the relatives of the slain, so that
the latter should not be deprived of aU satisfaction.
These clauses throw some light on ancient custom,
but they are evident signs of the gradual loosening of
the ties of kindred.
Payment 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

for the
servus andlibertus,

The Lex Scania Antiqua. 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 x 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.' 2
We seem bound to consider the wergeld of the The
freeborn man under the ' Lex Scania antiqua ' of wergeld
the previous century as 15 marks of silver. that oT
The explanation probably may be that the bonde *e
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
1 Addition F. 1. 2 Skanska Stadsratten, s. 43.
v 2

292 Scandinavian Tribal Custom.
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.1

VI. SCANIAN AND LOMBARDIC CUSTOM C0MPAEED.
Before closing this very imperfect chapter on the
Scandinavian laws it may be well to compare with them
Lombar clauses from the Lombardic laws relating to the family
tom. * 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 Boman ground. And
yet in this matter we find traces of the same ancient
custom of family holdings underlying them both, not
withstanding wide separation, and what is more, of the
same process of change going on notwithstanding the
difference in date. Boman and Christian influences
had not reached the Scanian district on the Baltic
tiU the twelfth century, and were only then effecting
changes which in the seventh century had already
been accomplished in Transylvania and Italy.
Edict of The first clause to which reference may be made
^643. is s. 153 of the ' Edict of Bothar ' (a.d. 643). It is
1 See I. s. 92 of the Danish I mulcta homicidii, Schlyter, Gloss.
version. The word Manbotser = sub voce.

Scanian and Lombardic Custom.

293

entitled ' De gradibus cugnationum.' It is interesting
as showing that seven generations were necessary to Kindred
the complete kindred.

Omnis parentilla usque in
septimum geniculum nomeretur,
ut parens parenti per gradum et
parentillam heres succedat : sic
tamen ut ille qui succedere vult,
norninatim unicuique nomina
parei:tum antecessorum suorum
dicat.

Let every parentiha up to the
seventh knee be named, so that
parent to parent by grade and
parentilla the heir may succeed ;
so moreover that he who wishes
to succeed must tell name by
name the names of his antece
dent parentes.

of seven
genera tions.

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 : —

Si fratres post mortem patris
in casa commune remanserint.
et unus ex ipsis in obsequium
regis aut judicis aliquas res
adquesiverit, habeat sibi in antea
absque portionem fratrum ; et
qui foras in exercitum aliquit
adquisiverit, commune sit fratri-
bus quod in casa dimiserit.

Et si quis in suprascriptis
fratribus gairethinx fecerit,
habeat in antea cui factum
fuerit.

If brothers shah have re
mained in the common home
after the father's death and one
of them shah have acquired
some property in service of the
king or judge, let him henceforth
have it for himself without the
brothers sharing in it. And if
one shall have acquired anything
abroad in the army let that be in
common to the brothers which
he left behind jn the home.
And if any one of the said
brothers makes a donation, let him
to whom it was made have it
henceforth.

Familyholdings.

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

Scandinavian Tribal Custom.

and so the rights of the other brothers have to be
considered.

Et qui ex ipsis uxorem
duxerit, et de rebus communes
meta data fuerit : quando alteri
idem uxorem tollere contigerit,
aut quando ad divisionem facien-
dam venerit, simili modo de
cumunes rebus ei refundatur
ahut tantum quantum frater in
meta dedit. De paterna autem
vel materna substantia quod
relicum fuerit inter se ssqualiter
dividant.

And he who of them marries
a wife and her meta was given
from the common property, when
ever it happens to another like
wise to take a wife or whenever
it comes to a division being made,
in the same way there shah be
refunded to him from the com
mon property as much as the
brother gave in meta. But
whatever is left of the paternal
or maternal substance let them
divide among them equally.

Rules of Attempts to settle such questions as these, whether
divisions. an(l 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 origi
nally 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

Scanian and Lombardic Custom.

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 Nosuc-
father's property should be allowed simply to lapse bom by °
into the common stock of the family till the grand- Jationat
father's death and then left to be divided among the ^^ but
uncles. And to mitigate the injustice the right to allowed.
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 additse ' is headed
' De successione nepotum gui post mortem patris in
sinu avi remanserint,' and is as follows : —

Si quis habuerit filios legiti-
mos unum aut plures, et con-
tigerit unum ex filiis vivente
patre mori, et reliquerit filios
legitimos, unum aut plures, et
contigerit avo mori, talem partem
percipiat de substantia avi sui,
una cum patruis suis, qualem
pater eorum inter fratribus suis
percepturus erat si vivus fuisset.

Similiter et si filias legitimas
unam aut plures, aut filii natu-
rales unum aut plures fuerint
habeant legem suam, sicut in
hoc edictum legitur. Quia in-

If any one shah have legiti
mate sons, one or more, and it
happens . that one of the sons
dies, the father being hving, and
he leaves legitimate sons, one or
more, and it happens that the
grandfather dies, let him [the
son] take such part of the sub
stance of his grandfather together
with his uncles as their father if
he had been alive would have
taken among his brothers.
Likewise also if there were
legitimate daughters, one or more,
or natural sons, one or more, let
them have their rights as is
decreed in this edict. Because it

296

Scandinavian Tribal Custom.

humanum et impium nobis
videtur, ut pro tali causa exhere-
ditentur filii ab hereditatem patris
sui pro eo, quod pater eorum in
sinu avi mortuos est, sed ex
omnibus ut supra aequalem cum
patruis suis in locum patris post
mortem avi percipiant portionem.

seems to us inhuman and impious
that for such a cause sons should
be disinherited from the inheri
tance of their father because their
father died in the mund of their
grandfather. But let them take
an equal portion with their
uncles of everything in the place
of their father.

The continued existence of community in the
family property is shown by the fact that, even after
the concession made in this clause, during the grand
father'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.

CHABTEB IX.
TEIBAL CUSTOM IN SCOTLAND.

1. TRACES OF TRIBAL CUSTOM IN THE LAWS OF THE
EARLY KINGS.
The population of Scotland was so various in origin Tribal
and language that it would be unreasonable to expect "" the"
uniformity of custom. Even where Celtic custom was aneien'
J laws of
best able to hold its own there must naturally have Scotland.
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 docu
ments 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

Tribal Custom in Scotland.

Laws of
the Four
Burgs.

Laws of
KingDavid.

Thus in the ' Leges Quatuor Burgorum ' is the
following clause : —
XVII. Of blmdewyt and siktyk thimgis.
And it is to wyt at in burgh sah nocht be herde bludewyt na
yit stokisdynt [styngisdynt] na merchet na heregelde na nane suilk
maner of thyng.
This wholesale and disdainful disregard of feudal
and tribal customs on the part of the townsmen of
the four Burgs was followed somewhat later by an
Ordinance of Edward I. (a.d. 1305) which again testi
fies to the wider survival of more directly Celtic
tribal usages by forbidding their continuance.1
Ordene est que l'usages de Scots et de Brets desorendroit soit
defendu si que mes ne soient usez.
Here we have the usages of the Brets and Scots
distinctly recognised as stiU lingering on so late as
the beginning of the fourteenth century in some parts
of Scotland. In the laws of King David2 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 : 3 —
If in any place within the peace of the King any one shah
attempt to strike another, he shah pay to the King 4 cows and to
the other 1 cow. If he shah reahy strike, but without drawing blood,
6 cows to the King and 2 cows to the other. If blood be drawn,
9 cows to the King and 3 to the person struck. If he slay the
other, he shall give to the King ' XXIX ky and a colpindach'
(juvenca).4 And he shall assyth to the kin of him slain after
the assyse of the land.

1 See Ancient Laws of Scot
land, preface, p. 42.
2 Ibid. i. 8.
3 These extracts are abridged
and put into modern English.
4 Compare the colpindach with
the Irish ' colpach heifer.' In the

Crith Gabhlach, p. 300, the Irish
text has the word colpdaig trans
lated 'colpach heifer.' Probably
the xxix should be ix™, i.e. ISO. See
Ancient Laws of Scotland, p. 270
(red paging), as to the next clause.

Laws of the Early Kings. 299
Clause XV. deals with violence done in the king's
court : —
If any one draws a knife to another in the King's Court it
shah be stricken through the middle of his hand. If he draws
blood, the hand shah be cut off. And if he slay any man, he shall
give to the King XX ky and a colpindach [ix**, Ayr MS.] and he
shah make peace with the kin of him slain and with the King
' after the assyse of the kynrik.'
In both these clauses the wergeld to the kin is
additional to the payment to the king (of 180 cows ?)
for breach of his peace.
Clause XVI. forbids the letting off of a thief for
money or friendship. An earl or any one having the
freedom and custom of an earl who does this is to
pay to the king 100 cows, and other great men not of
earl's rank 34 cows. The thief is to be ' outlawed
through all the king's land.'
It is clear, then, that in the time of King David the
system of wergelds payable to the kindred of the
person slain was generally in force, though no amount
is mentioned, and that payments were made at this
date mostly in cows.
In the ' Assize of King WiUiam ' under date a.d. Assize of
1180 is the foUowing mention of the wergeld to be paid wlifiam.
evidently for a thief who has been aUowed to escape
as above. XIV. Of the law which is called weregylt.
Of every thief through all Scotland whether that he be bond
man or freeman the wergeld is XXXIV ky and a half.
The following clause is further evidence of the
continued right of vengeance on the part of the kin
of a person slain.
XV. Of a man slain in the King's vengeance.
If any one for theft or rapin dies by law of iron or water, and
of him right be done, or if he were slain with theft found with
him and afterwards if his kin in vengeance of him slew him that

300 Tribal Custom in Scotland.
brought him to the law, the King shah have as fully right of such
men slayers for the death of him, as of his peace fully broken,
without concord or relaxation ; unless it be through the counsel
or the assent of his kin.
And if it happen by chance that the King grant peace to the
adverse party unknown to the kin of him that was slain, neverthe
less the kin of him shah take vengeance of them that slew their
kin.
Laws of Among the Statutes of Alexander H. under date
Alexander A ^ -j^q ^ following nneg were imposed Upon
persons who held land of the king and who absented
themselves from the army. (Clause IL, p. 68.)
From a thane, 6 cows and a gihot [juvenca].
From an ochtyern, 15 sheep or 6s. (half to King and hah to the
thane or the knight).
From a carl [rusticus], a cow and a sheep to be divided be
tween the King and the thane or knight, but if with the
leave of the thane or the knight, then ah to the King.
This clause reveals a social division of classes
into thanes, ochtyerns,1 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 coUection
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,'
But into modern English, the first part is as
follows : —
All laws either are man's law or God's law. By the law of
God, a head for a head, a hand for a hand, an eye for an eye, a foot
for a foot. 1 Oc-thigernd ' = ' Jung herr,' Windisch, p. 757.

Laws of the Early Kings. 301
By the law of man for the life of a man ixxx cows, for a foot
a mark, for a hand as much, for an eye half a mark, for an ear as
much, for a tooth 12 pence, for each inch of length of the wound
12 pence, for each inch of breadth of the wound 12 pence. For a
stroke under the ear 16 pence, for a stroke with a staff 8 pence,
and if he fall with the stroke 16 pence. For a wound in the face he
shah give an image of gold [? a coin with the King's head upon it].
The other part is as follows : —
And by man's law for breaking of bones 5 ores, for a wound
under the clothes 12 pence. For a wound before the sleeve
16 pence, and for each visible wound except the face 15 pence.
For a man's Ufe 12 marks ; for a wound above the chest 6 sohdi,
and under the chest 60 pence ; for a foot stroke 60 pence ; for blood
drawn 25 shillings, and beyond the sea 6 cows.
Now what are we to make of these ' Fragmenta ' ? Amount
Clearly the two fragments must be taken separately, wfergeid
for in the first the payment ' for the life of a man ' is doubt£ul-
180 cows and in the second the payment ' for a man's
life ' is twelve marks.
Mr. Bobertson 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.' 1 But he arrived at
this conclusion apparently by connecting this frag
ment 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 ' £hall pay to
the king 180 cows and a colpindach.' He concluded
that the payment was 180 cows from the reading
' ixX3C 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
1 Scotland under her early Kings, i. p. 258 n., and ii. p. 307

302 Tribal Custom in Scotland.
not the wergeld, because after making this payment
the slayer had stiU to ' assyth to the kin of him slain
after the assyse of the land.'
Nor does it seem any more likely that the pay
ment of twelve marks mentioned in the second frag
ment was the wergeld of Scottish custom. From its
amount it seems much more likely to correspond
with the payment aheady aUuded 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 aU, 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 speciaUy apphed.

II. THE 'REGIAM MAJESTATEM.'
Further traces of tribal custom are mentioned in
the treatise entitled ' Begiam majestatem ' l apart from
the remarkable addition to it, which also appears
again as a separate document, under the heading
' Leges inter Brettos et Scotos.'
Scotch The ' Begiam Majestatem ' itself may be regarded
Ghmviiie! as a version of GlanviUe's weU-known treatise on
English law, applied with alterations and adaptations
to Scotland by a Scotch writer conversant with local

Ancient Laws of Scotland, i. p. 233.

The ' Begiam Majestatem.'

303

custom, and probably dating between a.d. 1200 and
1230.1 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 Celtic
by which nativi might obtain freedom, a specially herTand8
Scotch addition is made, to the effect that if a lord has there-
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 foUows the phrase ' nee aliud
enache habebit a domino suo nisi recuperationem
libertatis.' This untranslated Gaelic word enache
has aheady 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 ' pre
positus of the hundred ' ' vicecomitatus vel le toshed-
erach.' The Gaelic Toshach or chieftain of a district
is much in evidence in the marginal records of the
' Book of Deer.' 2
1 History of English Law,
Pohock and Maitland, i. pp. 145
and 202. There is an elaborate
comparison of this Scotch treatise
with Glanvihe's in the Ancient
Laws of Scotland commencing at
p. 136 (red), which is very helpful.

2 £00/1; of Deer, preface,
p. lxxxi. Toshach (toisech). The
two officers in a townland were
the mormaer and the toisech.
Ced in Irish = hundred. Tosh-
ced-erach possibly may have
meant ' head of the hundred.'

304 Tribal Custom in Scotland.
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 aheady
quoted clause from the A.ssize of King William as to
the wergeld of a thief who has been allowed to
escape. De unoquoque fare per totam Scociam est wargeld triginta
vacce et una juvenca sive fuerit liber sive servus.
In IV. xxiii. a pledge is mentioned ' quod vocatur
culrach.'
Croand In IV. xxx. of the treatise it is stated that if a
person ° person on horseback rides over some one going before
to1thePaid nun so as to kiU him, he must render for the dead
parentes. man so killed ' ero et galnes ' as if he kiUed 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 back
ing 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 kiUed
ought to accept.
The mention in this treatise of ero and galnes pay
able to parentes of the slain seems to imply that the
customs relating to payments for homicide were
generally in force throughout Scotland and not con
fined to any particular district. The words ' ero 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,

The ' Regiam Majestatem.' 305
guecungue mulier fuerit, sive nobilis, sive serva, sive
mercenaria, is ' una juvenca vel tres solidi ' with 3 d.
as rectum servientis. Surely a female slave is here
intended. This seems to be the minimum ' merchet,' for the Merchet
i n of several
clause proceeds : — grades of women.
And if she be the daughter of a freeman and not of the lord of
the town (dominus ville) her merchet shall be one cow or six
shihings and ' rectum servientis ' 6 d. Likewise the merchet [of the
daughter] of a thane's son or ochethiern two cows or twelve shil
lings and ' rectum servientis ' 12 d.
Likewise the merchet of the daughter of an earl (comes) ; and
that of a queen ; twelve cows and ' rectum servientis ' two solidi.
This clause regarding the ' merchet ' is useful
as giving a scale of values in cows and shillings.
juvenca = 3 shillings. cow = 6 shihings.
And the merchet scale :
nobilis [?] ]
Mulier ¦ serva L throughout Scotland . J cow.
mercenaria I
Daughter of a liber . . . . . . 1 ,,
„ of a thane's son or ochethiern . . 2 cows.
,, of an earl or of a queen . . . 12 „
The solidus of this document can hardly be any Value
other than the Anglo-Norman silver shiUing of 12 sixNor-
pence of 32 wheat-grains, i.e. 384 w.g. The cow ^mings:
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
x

J06

Tribal Custom in Scotland.

for our present purpose as affording a valuable proof
that the Scotch compiler of the ' Begiam 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.
Value of In this added document whUe the payments are
in the again stated in cows, the value of the cow is reckoned,
document not in shillings, but in ores, which the figures, when
or'at i™8 examined, show to be ores of 16 pence. This reckon-
= stater. ing in ores of 16 pence suggests a Norse or Danish
influence. For, although the Anglo-Norman reckoning
in shihings 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,1
which enacted as foUows : —

Et ipsi qui portus custodiunt
efficiant per overhirnessam meam
ut omne pondus sit marcatum ad
pondus quo pecunia mea recipitur,
et eorum singulum signetur ita
quod xv ore libram faciant.

Those who have charge of the
towns (portus) shah secure that
under penalties every weight shah
be marked at the weight by which
my money is received, and let
each of them be marked so that
fifteen ores shall make a pound.
The ores of this law, as we shall see, were evi
dently ores of 16 pence, or 512 wheat-grains (16 x 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 Scotts was the same

1 See infra, c. xi.

' Leges inter Brettos et Scotos.' 307
ore as that in use with both Danes and English in
Danish England and probably Northumbria about
a.d. 1000 is an important one. For in this document
the value of the cow of the Bretts and Scots is stated
to be three ores, i.e. 1536 wheat-grains of silver, and
at the Scandinavian ratio of 1 : 8 the gold value of
the cow would therefore be once more 192 wheat-
grains or two gold solidi of Imperial standard. That Danish
the Danish ratio was 1 : 8 as in the Scandinavian laws J3^0 ef
we shaU find to be involved in the Anglo-Danish
compacts making Danes and Enghsh ' equaUy dear,'
while as late as a.d. 1192 the Abbey of Kelso com
pounded for payments to the Bope 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.1
We may therefore consider that the document Laws
relating to the Bretts and Scots belongs to the period 3^
of Danish influence, and is of much earlier date than ?nna Soots
. belong to
the work to which it was appended by the Scotch time of
editor of Glanville. influence.
III. LEGES INTER BRETTOS ET SCOTOS.
The remarkable document printed separately in Norman
Appendix in. of the 'Ancient Laws of Scotland' fe^ion
under the above title is given in three languages — thirteenth
o # 00 century.
Latin, Norman French, and Scottish English.
The oldest version of it is that of the 'Berne
Manuscript,' now in the ' Begister House ' at Edin
burgh, which is considered to be of the thirteenth
century. It appears in this manuscript as a separate
1 Bobertson'e Historical Essays, p. 47.
x 2

308 Tribal Custom in Scotland.
document in Norman French, and therefore it would
seem that we owe this statement of ancient custom to
a Norman scribe. The Latin version added to the
' Begiam Majestatem ' is of later date. The earliest
manuscript is of the fourteenth century.1
As given in the 'Begiam Majestatem' it consists
of four clauses, LV to LVHI.
The clauses are headed ' Quid sit le ero quod
anglice dicitur " grant before the King," ' ' De
occisis in pace Begis,' ' De Kelchyn regis et ahorum
dominorum Scocie,' and ' De effusione sanguinis.'
It is printed in Appendix HI. 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 ac
companied by the Latin from the ' Begiam Majes
tatem' and a Scottish-English version of unknown
date. The first clause is as foUows : —
The ero De ero quod anglice De ero le Rey descoce Her folowis lee Croo-
and dicitur grant befor the & des altres choses.
Eyng. Statuit dominus rex Cro le rei descoce est ¦ pe lord >e king has
quod le Cro domini regis mile vaehes • u • treis statut J>at \>e Croo of >e
scocie est mille vacce mil ores ¦ e fet a, sauer king of Scotland i" ky
vel tria millia orarum treis ores • a la vache. or iiim orarum aurearum
aurearum scilicet tres Cro a vn conte descoce ¦ bot iii ar for )>e kow.
ore pro vacoa. Item le v del fiz le Rei • viiXI • Item J>e Croo of J>e
Cro filii regis vel vnius vaehes • -j x • ov ¦ iiiic • kingis soune or of ane
comitis scocie est septies -j • L • ores. erl of Scotland is vii
viginti [et decern] vacce tymes xx" ky and ten
vel tres ore pro vaoca. ky.
Item le Cro filii vnius C Cro a vn fiz a cunt Item jpe Croo of }>e
comitis vel vnius thani ou a vn thayn ¦ est • C • sone of ane erl or of a
est centum vacce. vaehes ¦ u ¦ treis • C • than is j° ky.
ores.

galnes.

See preface to the Ancient Laws of Scotland.

Leges inter Brettos et Scotos.

309

Item le Cro filii thani
-est sexaginta sex vacce
et due partes vnius
vacce. Item le Cro nepotis
vnius thani vel vnius
ogthiern est quadraginta
quatuor vacce et viginti
unus denariorum et due
partes vnius denarii.
Et omnes bassiores in
parentela sunt rustici.
Item le Cro vnius
rustici est sexdecim
vacce. Item le Cro cuiuslibet
femine virum habentis
est minor per tereiam
partem quam le Cro
viri sui et si non habeat
virum tunc le Cro ipsius
est adeo magnum sicut
le Cro f ratris sui si quern
habet. Item le Cro et le
galnys et le enach vnius
cuiusque hominis sunt
pares scilicet in respectu
de le enach leminarum

C Cro a fiz dun thayn •
est • lxvi • vaehes • -j •
ii • pars dune vache •
ou • CC • ores.
C Cro • del neuu • a
vn thain • u • de vn
ogettheyrn est • xliiij ¦
vaSo • -} • xxi • d • -] deu
pars dun defi. E tu li
pl9 [bas] en le parente
siit vilayns • -j vnt dreit1
a vilayn. C Cro a vn viley ¦ xvi •
vacc. C Cro a ehecune
feme q baro at ¦ est de
la tierz partie mayns de
son baro • et si ele nat
net de baro • dukes est
le cro ausi g'nt cu vne
de se freres.

le cro -j le galnis • -j
le enach a cheeii home
sut peirs ¦ ceo est a sauer
le enach • pur sa feme.

Item J>e Croo of J>e
sone of a thane is iii"
ky and vi ky and twa-
pert a kow.
Item J>e Cro of \>e
newow of a than or of
ane ogetheam is xliiii
ky and xxi penijs and
twapert of a peny.
Item al l>ir Jjat ar lawer
J>an >ir in kyn ar callit
earlis. Item J>e cro of a carl
is xvi ky.
Item )>e Croo of euerilk
woman hafand husband
is less be >e thridpert >an
J>e cro of hyr husbande.
And gif scho has nocht
a husband (>an >e cro of
hir is alsmekil as J>e cro
of hir broder gif scho
ony broder has.
Item >e Cro and J>e
gallnes and jpe enauch
of euerilkaman ar lik
l>at is to say in respic of
enauch of bar wiffis.

It wiU be most convenient to put these payments
of the cro and galnes into a tabular form.

King of Scotland
King's son and comes (earl)
Comes' son and thane
Thane's son
Thane's grandson or ogthiern
Ah lower in parentela or kin and
rustics 

1000 cows = 3000 ores
140 cows = 420 ,.
100 cows = 300 „
66|cows= 200 „
44 cows & 21d. and f d.
16 cows

The cro and galnes seem to be substantially the
•same thing as the wergeld. The word 'cro' is of
uncertain meaning. The ' cro ' of the Brehon laws is
translated ' property.' It seems also to have had the

310 Tribal Custom in Scotland.
meaning of ' death.' The word ' galnes ' can hardly
be other than the Welsh galanas or wergeld.
Whether the phrase ' cro and galnes ' means two-
things or one thing, and if two things, what the
distinction between them was, it is not easy to see.
Thane's But evidently the two together made a single payment
ioo8cows. for each grade of rank. The payments, moreover,
are expressed in cows as well as in ores and pence,
and the payment of 100 cows seems to mark the thane
as the typical and complete tribesman.
The two explanatory clauses introduce a third
element, the ' enach.'
The Cro of a woman having a husband is one third less than
the husband's cro, and if no husband she has the same cro as her
brother. The Cro and the galnys and the enach of every man are alike,
that is to say in respect of the enach of their wives [i.e. one third
less than the husband's].
The enach, as already said, seems to be the
honour-price of the Brehon law. We have seen that,
according to the Scotch addition and GlanviUe'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 weU with the Irish
enec-laun 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 aheady 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

Leges inter Brettos et Scotos.

311

slain ' according to the assize of the Kynrik.' In
these early laws the payment for slaying a man in
the king's peace was, according to the corrected text,
180 cows. In the foUowing clauses 180 cows are Payments
again the payment for breach of the king's peace, oTpeace0
but there are payments also for breach of :!- ! < ™
peace of other classes.
De occisis in pace
regis.

the

persons.

Si quis homo sit
occisus in pace domini
regis sibi pertinent
nouies viginti vacce.
Item si homo sit
occisus in pace filii regis
vel vnius comitis sibi
pertinent quater viginti
et decern vacce.
Item si homo sit oc
cisus in pace filii vnius
comitis vel in pace vnius
thani sibi pertinent sexa-
ginta vacce.
Item si homo sit oc
cisus in pace filii vnius
thani sibi pertinent
quadraginta vacce. Item
si homo sit occisus in
pace nepotis vnius thani
sibi pertinent viginti
vacce et due partes vnius
vacce.

C Si hiime est ocys en
la pes le rei • il a feit ¦
ix11 vaco.
C Si hiime seit ocis en
la pes • le fiz le rei • v en
la pees vn cunte • ilur •
a feit • iiij1* • vacc ¦ -j • x.
C Si hiime seit ocis •
en la pees • al fiz dun
cunt • v • de vn thain •
ilur a feit • lx • vachis.

Of }>haim hat ar slayn
in j>e peis of )>e king and
oJ>er lordis.
Gift ony man be slayn
in >e pes of our lord >e
king til him pertenis ix
tymis xx" ky.
Item gif a man be
slayn in J>e pes of J>e
sone of i>e king or of ane
erl til him pertenis iiij
tymis xxu ky and x ky.
Item gif a man be
slayn in J>e pes of }>e son
of an erl or of a thayn
till him pertinis iijx* ky.

C Si vn seit occis en Item gif a man be
la pees al fiz dun thain ¦ slayn in pes of jpe sone
ili a feit ¦ xxvi ¦ [• xl •] of a thayn til him per-
vaSc. tenis xl ky. Item gif a
man be slayn in J>e pece
of a nevo of a thayn til
him pertinis xx" ky and
twapert a kow.

The payments were as under :-
If a man be killed im, pace regis .
In that of the King's son or comes
„ „ comes' son or thane
„ „ thane's son .
„ „ thane's grandson
They seem to be very large, but they are not im
possible, seeing that in the Norse law, while the

180

COWS.N

To the

90

" 1

person in

60

" 1

- whose peace

40

"

he was

20*

„ J

killed.

Kelchin.

312 Tribal Custom in Scotland.
wergeld of the hauld was 27 marks of silver or 96
cows, the payment to the king for the breach of his
peace (frith-bot) was 40 marks, i.e. 128 cows.1
The The next two clauses, under the heading ' Kelchin '
or ' Gelchach,' seem to refer to insult or wounding,
(the Welsh gweli=y?o\md). And as the word enach
does not occur again in the laws of Bretts and Scots
it seems probable that it may have been included
under this heading, and that the Kelchin or Gelchach,
like the Irish enach and the Welsh saraad, referred
quite as~ much to insults to personal honour as to
bodily injuries.
De Kelchyn Of lee Kelchyn
Item le kelchyn C Gelchach le rei ¦ a • Item he kelchin of our
domini regis est centum C • vaec ¦ a cont v al fiz lord i>e king is j« ky.
vacce. Item le kelchyn le rei ¦ lx[vi] vaco • -j • Item be kelchyn of a
filii regis vel vnius ii • pars deune vaec. sonne of be kingis or of
comitis est sexaginta sex an erle is iij" ky [and
vacce et due partes vnius sex ky and frwapert of a
vacce. kow]
Item le kelchyn filii C Gelchac ¦ de thayn • Item ]>e kelchin of a
vnius comitis vel vnius v • de fiz a cunt ¦ est thane or of \>e sone of ane
thani est quadraginta xliiij • vaec ¦ & • xxi ¦ d • erle is xliiij ky and xxi
quatuor vacce viginti -j deus pars deune mayl. peniis and twapert of a
vnus denarii et due half peny. Item be
partes vnius oboli. Item kelchin of l>e sonne of a
le kelchyn filii thani est thane is les be thrid part
minor per terciam par- ban of his fader bat is to
tern quam patris sui et say bar pertenis til him
sunt viginti nouem vacce xxix ky and xi peniis and
vndecim denarii et be thrid part of a half
tercia pars vnius oboli. peny. And a carl has na
Rusticus nichil habet de kelchin.
kelchyn. Item si uxor liberi C Si feme a vn franc Item gif he wif of a
ominis sit occisa vir hiime est ocis • son baro fre man be slayn hyr
uus habebit le kelchyn auera le kelchin • -j ses husband sal haf he kel-
parentes eius habe- .parens auerflt le cro & le chyn. And hir kyn sal
bunt le cro et le galnes. galnis. haf he cro and he galnes.

1 Gulathing law, s. 152.

'Leges inter Brettos et Scotos.

313

De Kelchyn Of lee Kelchyn
Item si uxor rustici sit C Et si feme a vileyn Item gif he woman of
occisa dominus ipsius seit ocis ¦ le seygnur del a carl be slayn he lord in
terre in qua manet fe v le vilein meint auera quhais lande he duellis
habebit le kelchyn et le kelchin • •) le vilein sal haf J>e kelchin and
parentes eius le cro et le auera le turhochret a sa hyr kyn sal haf he ero
feme del kelchin • •] le and he galnes.
parens [le ero] et le
galnis.

De effusione sanguinis
Item sanguis de capite
vnius comitis aut filii

Of blude drawyn
pe blude of he hede of

C Le saiic de la teste
a vn cute v • del fiz al ane erl or of a kingis son
regis sunt nouem vacce. rei ¦ est • ix • vaehes • del is ix ky. Item he blud of
Item sanguis filii comitis thayn • v del fiz al vn be sone of ane erle is vi

Paymentsfor blood
drawn.

aut vnius thani sunt sex cute • vi • vachis
vacce. Item de sanguine al vn thayn • iij
filii thani tres vacce.
Item de sanguine nepotis
thani due vacce et due
partes vnius vacce. Item
de sanguine vnius rustici
vna vacca.
De sanguine extraeto
subtus anhelitum est mi
nus per terciam partem parte meyndre,
in omnibus supradictis.

¦ del fiz ky or of a thayn. Item
vaec. he blude of he sone of a
thayn is iij ky. Item be
blud of be nevo of a
thayn is twa ky and twa-
pert a kow. Item he blud
of a carl a kow.

C Le saunc de suz le Item blude drawyn
alayn • est de la terce vnder he aand is thrid
pert les of al hir gangand
befor.
Et si muliernon habeat -j ensemet de lur femes And gif a woman haf
virum ius suum erit est saunc est del ?ce part nocht a husband hyr
sicut ius fratris sui si mayndre • mes si feme rycht salbe as of her
quern habeat. seit sen baron • • • dukes broder gif scho ony
ad ele tel dreitur • com broder has.
sun frere.
Item percussio sine Item strikyn without

sanguinedenarii.

eft'uso decern

blud drawyn x penijs.

¦ ¦ • • C Et si hiime est ocis en le ost • sun seingn' •
auera le kelchin • -j ses parens le cro • e le galnis
• -j le rei • viij ¦ vaehes • flatha.
But into a tabular form these payments are as
follows : —
Kelchyn or Gelchach
King  100 cows
Son of King or comes . . 66J „
Son of comes and thane . 44
Son of thane ... 29
Rusticus or carl . . . nil

and 21 d. and § oh.
nil I

314 Tribal Custom in Scotland.
De effusione sanguinis or of blude drawyn.
Blood drawn from the head of a
Comes or King's son  9 cows
Comes' son or thane  6 „
Thane's son  3 „ (? 4)
Thane's grandson  2f „
Eusticus  1 cow
Blood drawn subtus anheUtum one third less than above it.
If a woman have not a husband her right shah be as her
brother, if she has one.
Striking without blood drawn Wd.
That we are right in supposing the kelchin to be
analogous to the Welsh saraad seems to be confirmed
by the interesting additional information appended
to the clauses.
And if the wife of a freeman is slain her husband has the
Kelchyn and her kin the Cro and galnes.
Item if the woman of a carl be slain, the lord of the fee where
he dwells shah have the Kelchin and the vilein shah have his
wife's turhochret of the Kelchin and her kin shah have the cro
and the galnes.
If a man be kihed in the host, his lord shah have the Kelchin
and his parentes the cro and the galnes and the King eight cows
flatha. These clauses of explanation are very important
when we try to understand the laws to which they
are appended as a whole.
The Commencing with what seems to be the wergeld,
wergeld the ' cro and galnes ' of the thane, who may be taken as
main0ne of tne typical freeman, was 100 cows. We have seen that
100 cows, ^he 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.

' Leges inter Brettos et Scotos.' 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 20a!., while the cows in which
the cro was paid were equated with three ores of
16a?. 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 The
with a cro of 1000 cows. His son takes equal rank ofarank°ns
with the earl with a cro of 140 cows. The earl's son ^^t
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 66f cows, and next the thane's
grandson with a cro one third less again, of 44 cows
and 21f pence. AU 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

316 Tribal Custom in Scotland.
has the earl and the king above him and the earl's
son as his equal in rank. Their children and
grandchildren belong still to the chieftain class, but
they are juniors or cadets of the class. Even the
grandchildren of the thane are ogthierns, or young
thanes. In natural course they may presumably take
their father's rank on his death, but not until that
happens. And possibly only the eldest son of the
earl or of the thane succeeded to the official position
of chieftain of his house.
Beyond this there is not much more to be gathered
concerning the gradations in social rank. Nor are
we told anything about the division of the amount
among the members of the kindred receiving or
paying the cro as the case might be. We are told
only that the cro and galnes belonged to the kin of
the person slain.
Turning from the cro and galnes to the kelchin :
what are we to make of it ?
The The gradations resemble those of the cro to this
Htethe extent, that the kelchin of each grade was one third
WeIsl? less than that of the one above, but the kelchin was
saraad
for insult, 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

' Leges inter Brettos et Scotos.' 317
wergeld proper to the kindred or relations in blood.
When a wife was slain, the husband, who was not a
blood relation or of the kindred of the wife, took the
kelchin, while the wergeld proper — cro and galnes
— went to her kindred.
Turning to the payment which had to be made Each
for breach of the peace or protection of the lord, it fpfecmct
was a payment due to the king if the homicide were 2nd a ,
perpetrated ' in pace regis,' and to a person of each breach
grade in succession, even to the thane's grandson, in But not;
case the homicide were committed within his pre- orrastic.
cinct. 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
kiUed the lord took the kelchin. The homicide was
reckoned as an insult and loss to him. The wergeld
did not go to the husband but to the kindred of the
wife, as in the case of those of higher grade. So that,
so far as this at least, there was recognition of
kindred in the rustic's position. His ' cro and galnes '
was just about one sixth of that of the thane and
presumably went to his kin — as his wife's cro and
galnes went to her kin.
There is one other point as yet unexplained —
what was the ' turhochret ' ?
It occurs in the clause : —
Item if the woman of a carl be slain, the lord of the fee where
he dwells shah have the kelchin and the vileim, shall have his wife's
turhochret of the kelchin and her kyn shall have the cro and the
galnes. There are so many Gaelic words in this document

318 Tribal Custom in Scotland.
that there can be little doubt that the turhochret1
is one of them. It seems to have been the part of
the kelchin allowed by the lord to go to the hus
band 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.
The wife One thing is made remarkably clear in this
belonged D J
to her document: that the wife of the free tribesman did
kindred, 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 there
fore could claim the kelchin, the cro and the galnes
passed to her kin. The wife, therefore, in a very
real sense belonged stiU 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 aU, what the study of
Beowulf prepared us to regard as by no means con
fined to the Celtic tribes.

IV. RECOGNITION OP THE FOURTH AND NINTH DEGREES
OE KINDRED IN SCOTLAND.
In the foregoing sections no distinct reference has
been made to the recognition of the fourth and ninth

1 See Windisch, Worterbuch, sub voce ' ter-fochrice,' also 'fo-'chraic.'

Degrees of Kindred. 319
degrees of kindred. It would be misleading to pass
from the Scottish evidence without allusion to the
subject. Strongly influenced as custom in Scotland must
have been by both Cymric and Gaelic as well as Norse
and Danish traditions, it would be strange if no trace
were left in Scotland of so marked a feature of tribal
policy. It wiU be enough, however, to refer the reader to The nine
the interesting chapter on ' The Kin ' in the second kindred.0
volume of Mr. Bobertson's ' Scotland under her early
Kings,' in which he alludes to ' the words in which
the Northern St. Margaret is supposed to have
formaUy renounced her kindred (" al my Kun I forsake
to the nithe Kne "), and to the " nine degrees of
kindred " within which aU 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 recaU 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 Thefourth
under the heading ' Quoniam attachiamenta ' 1 is the fixes the
clause ' De brevi de nativis ' which may be translated ^^_of
as foUows : —
There are different kinds of nativi or bondmen. For some are
nativi de avo etproavo which is vulgarly cahed de evo et trevo,
whom he [the lord] will claim to be his nativi naturally, by be
ginning to narrate their ancestors, if their names are known, to
1 Vol. i. p. 655.

320 Tribal Custom in Scotland.
wit, of his great-grandfather, grandfather, and father, who are
convicted by his saying that they all are his nativi in such and
such a villa of his, and in a certain place within the said villa on
servile land, and that they rendered and did to him and his
ancestors servile service for many days and years, and this
"nativitas," or bondage, can be proved through the parents of the
convicted one, if they are alive, or per bonam assisam.
Likewise, there is another kind of bondage, similar to this,
where some stranger shah have taken some servile land from some
lord doing servile service for the same land, and if he die on the
same land, and his son likewise, and afterwards his son shah have
lived and died on the same land, then ah his posterity [i.e. his
great-grandsons] shah be at the fourth grade altogether in servile
condition to his lord, and his whole posterity can be proved in the
same way.
There is a third kind of nativitas, or bondage, where some
freeman, pro domimio habendo vel manutenencia [i.e. for protec
tion or maintenance] from some magnate, gives himself up to that
lord as his nativus or bondman in his court by the front hair of
his head (per crines anteriores capitis sui).
Whatever may have been the date and origin of
these remarkable clauses, they are valuable as show
ing how tribal tradition became hardened in course
of time into Feudal law, and how, the transition from
tribal to Feudal principles having been accomphshed,
what is known everywhere by the name of ' serfdom,'
became domiciled in Scotland.

CHABTEB X.
ANGLO-SAXON CUSTOM FROM THE NOBMAN POINT
OF VIEW.

I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS.
In approaching the question of Anglo-Saxon tribal The
custom it is needful to make a clear distinction ^'tobe
between the laws of the Kentish kings and the other treated
° apart.
Anglo-Saxon laws.
The laws of the Kentish kings are known only in
the MS. — the Textus Boffensis — compiled or col
lected by Ernulf, Bishop of Bochester 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
T

u-

322

Anglo-Saxon Custom.

Laws of so-called ' Laws of Henry I.,' as a Norman though
unofficial view of what Anglo-Saxon custom was or
had been before the Conquest.
When a It may be well to inquire first, what in the view
was killed, 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 un
avoidable absence of kindred.

Si Francigena qui parentes non
habeat in murdro perimatur,
habeat precium natalis ejus qui
murdrum abarnaverit : Bex de
hundreto ubi invenietur xl marc
argenti ; nisi intra vii dies reddatur
malefactor justicie regis, et talis
de quo possit justicia fieri. . . .

Ad patrem vero, non ad
matrem, generaeionis consideracio
dirigatur : omnibus enim Franci-
genis et alienigenis debet esse rex
pro cognacione et advocato, si
penitus ahum non habeat.
Si ex parte patris parentes non
habeat qui occiditur, et ex parte
matris habeat, quantum ad eum
attinet, i. tercia pars weregildi sui
reddatur.

(Ixxv. 6) If a Norman (Fran
cigena) be murdered who has no
parentes, let that person have the
price of his birth who made known
the murder. The King to have 40
marks of silver from the hundred
where he was found unless within
7 days the malefactor be delivered
up to the justice of the King in
such a way that justice can be had
of him. . . .
(7) Consideration as to birth
must be directed to the father, not
to the mother, for the King ought
to be in the place of maternal
kindred (cognatio) and of advocate
for the Norman or stranger if he
absolutely have no other.
(8) If he who is killed has no
parentes on his father's side and
he has on his mother's side, let
what appertains to her, viz. one-
third of his wergeld, be paid.

These clauses show that when a Norman or
stranger was slain, in a certain way the king was to
stand in the place of the absent kindred to see that
justice was done.
The maternal kindred of the slain, if such were at
hand, should receive the third of the wergeld which
pertained to them, and so presumably the paternal
kindred, if they alone were present, should take the

From Norman Point of View.

323

two thirds pertaining to them, the king taking the
share of the maternal kindred. In any case the right
of the parentes was recognised when they were present.
Next with regard to the payment of the wergeld When the
fii'i- -nt slayer was
in the case of the slayer being a Norman or a a Norman.
stranger : —
Si quis hujusmodi faciat homi-
cidium, parentes ejus tantum were
reddant, quantum pro ea reci-
perent, si occideretur.
Si ex parte patris parentes
habeat, et ex parte matris non
habeat, et hominem occideret,
reddant pertinentes ei quantum
de ejus interfeccione reciperent, i.
duas partes weregildi sui.
Si quis autem paterna cog-
nacione carens male pugnet ut
hominem occidat, si tunc cog-
nacionem maternam habeat, red
dat ipsa terciam partem were,
terciam congildones, pro tercia
fugiat. Si nee maternam cognacionem
habeat, reddant congildones di-
midiam weram, pro dimidia fugiat
vel componat.
Si quis occidatur ejusmodi
secundum legem pristinam, si
parentela careat, reddatur dimi-
dium regi, dimidium congildoni-
bus.

(8) If any one commithomicide
of this kind let his parentes pay
so much wergeld as they would
have received if he [the slayer] had
been kihed.
(9) If he [the slayer] have
parentes on his father's side and
not on his mother's and kills a
man, they pay for him as much as
they would have received had he
been kihed, i.e. two thirds of the
wergeld. (10) If any one who has no
paternal relations shall fight so
wrongly as to kill a man and if he
has maternal relations they shall
pay one-third of the wer, the con
gildones one-third, and for the
other third let him flee.
If he has no maternal rela
tions the congildones shall pay
half, and for half he shah flee or
pay. If any such person is kihed,
then according to ancient law, if
he have no kindred half shall be
paid to the King and half to the
congildones.

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
Y 2

Recur
rence to
Anglo- Saxoncustom.

524

Anglo-Saxon Custom.

of the
kinless stranger.

Protection recognised in England. The early Danish conquests
had made special provisions necessary for the protec
tion 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.' 1
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-caUed laws
relating to Normans and strangers adhere to the
principle of the liability of kindred both paternal and

1 This passage is from the last
clause in the so-called treaty be
tween Edward and Guthrum,
'when the English and Danes
fully took to peace and to friend

ship, and the Witan also who were
afterwards, oft and unseldom that
same renewed and increased with
good.' Thorpe, p. 71 ; and see
Schmid's Einleitung, p. xlii.

From Norman Point of View. 325
maternal in cases of homicide, and this is the more re
markable 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 recog
nition 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 wessex
law is thus Stated :  twyhynde
or villa-
(lxx. i) In Wessex, which is nus and
the capital of the kingdom and of j™elye-
laws, the wer of the twyhynde- ±^ng °
man, i.e. of the villanus, is four
pounds ; of the twelvehyndeman,
i.e. of the thane, twenty-five
pounds.

Di Westsexa, que caput regni
est et legum, twihindi, i. villani
wera est iiii hb. ; twelfhindi, i.
thaini xxv hb.

The Anglo-Saxon and Norman lb. of silver was
240cZ., 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
jpounds was a rough equivalent of the twyhynde-
man's wergeld of 200 Wessex scillings.

326

Anglo-Saxon Custom.

A little further on in the same clause is the
following quotation from Ethelred II.'s compact with
Olaf.

Si Anglicus homo Dacum occi-
dat, liber hberum, persolvat eum
xxv lib. vel ipse malefactor red
datur, et tantundem reddat Dacus
de Anghco si eum occidat.

(lxx. s. 6.) If an Englishman
kill a Dane — a freeman a freeman
— let him pay for him 25 lbs. or
the criminal himself shah be de
livered up. And let the Dane do
the same if he kih an Englishman,

The English and Danish typical freeman of this
clause with his 25 lb. wergeld is clearly recognised
in these so-caUed laws as the twelve-hyndeman and
not the twyhynde man, who, though free, is identified
with the ' villanus.'
wife still In further sections of this clause regarding
her°ownto Wessex customs very important statements are made
kindred m witn regard to the position of the wife in case of
respect of ° ...
wergeld. 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 foUowing state
ment : —

Similiter, si mulier homici-
dium faciat, in earn vel in pro-
geniem vel parentes ejus vindi-
cetur, vel inde componat : non in
virum suum, seu clientelam inno-
centem.

Likewise if a woman commits
homicide let it be avenged on her
or on her children or parentes or
paid for from that side, not on
her husband, or innocent con
nections.

And in s. 13 : —
Si mulier occidatur, sicut If a woman be kihed, what-
weregildum ejus est reddatur, ex ever be her wergeld, let it be paid
parte patris, sicut observamus in i ex parte patris just as we have

From Norman Point of View.

327

aliis. (14) Si pregnans occidatur
et puer in ea vivat, uterque plena
wera reddatur. Si nondum vivus
sit, dimidia wera solvatur parenti-
bus ex parte patrisP

said in other cases. (14) If a
pregnant woman be killed and her
child be living let the full wergeld
of both be paid. If not yet living
let. hah a wergeld be paid [for it]
to the parentes ex parte patris,
[of the child].

The position of the wife under Wessex custom is
further shown by the foUowing :. —

Si sponsa virum suum super -
vixerit, dotem et maritacionem
suam, cartarum instrumentis vel
testium exhibicionibus eitraditam,
perpetualiter habeat, et morgan-
givam suam et terciam partem de
omni cohaboracione sua, preter
vestes et lectum suum ; et si quid
ex eis in elemosinis vel com muni
necessitate consumpserit, nichil
inde recipiat.
Si mulier absque liberis
moriatur, parentes ejus cum
marito suo partem suam dividant.

(ss. 22-23). If the wife survive
her husband let her have per
manently her dower and her
' maritagium ' given to her by
written instruments or production
of witnesses, and her ' morgengift '
and a third part of all joint
acquisition, besides clothes and
her bed, and let her receive no
thing in respect of what has been
consumed in charity or common
necessity. If a woman die without chil
dren hex parentes divide her share
with the husband.

These statements are valuable evidence that, in
regard to the position of a wife, Anglo-Saxon custom
was very nearly the same as' Cymric custom and that
of the Bretts and Scots. And they are the more
important as stating in black and white what is only
to be inferred from isolated statements in earlier
laws. We now pass to c. LXXVL, 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

Anglo-Saxon Custom.

Suretiesfor wer
geld 8 of
paternal
and 4 of
maternal
kindred.

Twelve-hynde man's
halsfang.

Manbot and fight
wite and
then wer
geld.

Et rectum est ut homicida,
postquam weregildum vadiaverit
inveniat wereplegios, sicut ad earn
pertinebit, i. de thaino debent dari
xii wereplegii, viii de parte patris,
et iiii de cognacione matris ; et
cum hoc factum erit, elevetur
inter eos pax regis in omni were-
gildo, et debet halsfang primo
reddi, sicut were modus erit.

And it is right that the homi
cide after having given pledge for
the wergeld should find the wer-
pledges pertaining to it.
From the thane : 12 were-
pledges, 8 exparte patris and4de
cognatione matris, and this done
shall be raised among them the
peace of the king in every wer
geld. And first the halsfang should
be paid according to the nature of
the wergeld.

FoUowing the case of the twelve-hyndeman a little
further we learn that : —

Twelf-hindus est homo plene
nobilis, i. thainus cujus wera est
duodecies c sol. qui faciunt hbras
xxv, cujus halsfang sunt cxx sol.
qui faciunt hodie sol. 1. Et non
pertinet alii cognacioni pecunia
ista, nisi illis qui sunt intra genu.

The twelve-hyndeman is the
man plene nobilis, i.e. the thane
whose wergeld is 1200 scillings
which make 25Z.
His halsfang is 120s. which to
day equals 50s.1 [Norman], and it
belongs to no other relations than
those who are intra genu.

This halsfang had to be paid on the 21st day
from the giving of the pledge, and it seems to have
been a token in recognition of guilt or earnest
money to show that the wergeld would be paid.
On the next 21st night from the payment of the
halsfang the manbot had to be paid, and on the 21st
night after that the fightwite, and on the 21st night
again the first payment of the wergeld.

Et sic omnibus parentibus
dominisque emendacionibus inici-
atis persolvantur reliquum were,
intra terminum quem sapientes
instituunt.

Thus for ah the parentes and
lords, amends being set agoing,
the rest of the wergeld shah be
paid during a term to be fixed by
the wise men (sapientes).

Turning next to the case of persons twyhynde
born — cyrlisci vel villani — more details are given : —

1 120s. of od. = 50s. of 12rf.

From Norman Point of View.

529

After stating their wergeld to be four pounds, the
clause proceeds : —

Halsfange ejus sunt v marc.
que faciunt xii sol. et vi den. : est
autem verbum Anghcum quod
Latine sonat ' apprehensio colli.'

Their halsfang is v marks Halsfang
which = 12s. 6d. ; and it is an of *e
English word which in Latin JZsyn
means apprehensio colli.'

There is evidently here an error. ' V marc '
ought to be read 5 mancuses. The mancus was 30d
or 2s. Qd. Norman money and the halsfang therefore
150<i. or 12s. Qd. Norman money,, as stated in the
following clause.

Si quis ad iv lib. persolvendus
occidatur, et ad id res veniat, ut
precio natahs ejus componendus
sit, primo debent reddi xii sol. et
vi den. et in wera numerari : red-
dantur vero patri, vel filio, vel
fratri, vel qui propinquior est de
patre, si predictos parentes non
habeat : si omnes istos habeat, et
ipsi dividant inter se.
A die qua wera vadiata est in
xxi diem, sine omni excusacione
et dilacione, debet halsfang reddi,
sicut premisimus. . .
Inde ad xxi diem reddatur
ipsius manbota : tunc ad xxi diem
fuytwhita : inde ad xxi diem red
datur ipsius were frumgildum, i.
vii sol. et vi den. ad explecionem
xx sol.

(6) If any one is killed to be
paid for at 4.1. and it comes to pass
that the price of his birth has to
be paid, first should be paid [the
halsfang of] 12s. 6d. to be reckoned
in the wergeld, and this is paid to
the father or son, or brother, or,
failing these, whoever is the
nearest of kin to the father. If
he has all these, they divide it be
tween them.
On the 21st day from the
giving of the pledge, without any
excuse or delay the halsfang
should be paid, as we have said. .
On the 21st day after that, is
to be paid the manbot, then on
the 21st day the fightwite, and
then on the 21st day must be
paid the frumgeld of the wergeld,
i.e. 7s. 6d., to the completion of
20s.

Manbot and
fightwite and then
wergeld.

Thus we learn that in the case of the twy-hyndeman
the halsfang of 12s. Qd. and the frumgeld of 7s. Qd.
make up the first 20s. of the wergeld of four pounds.
The clause proceeds : —

330

Anglo-Saxon Custom.

Inde componat qui weram
solvit, terminum de xx sol. : inde
ponant terminum suum parentes
mortui de xl ovibus, que pro xx
sol. computantur : sint autem oves
videntes et cornute, nulla parte
corporis diminute : ultimo ter-
mino reddatur equus, qui pro xx
sol. numerandus est. Hoc secun
dum legem et nostram consuetu-
dinem diximus : differentia tamen
weregildi multa est in Cancia
villanorum et baronum.

After that he who pays the
wergeld pays at another term 20s.
Then the parentes of the dead
fix a term for 40 sheep which are
reckoned as 20s., but they must
be sheep seeing and horned and
deficient in no part of the body.
At the last term a horse is given
reckoned at 20s. This we have
said according to law and our
custom. There is, however, great
difference in the wergeld of both
villani and barones in Kent.

Thus both in the case of the twelve-hynde and the
twy-hyndeman the halsfang is the first beginning of the
wergeld, and whatever may be the exact meaning of
the word, it is pretty evident that it was regarded as
an admission of the wrong done and as a kind of
earnest money that the rest of the wergeld would be
paid. But between the halsfang or earnest monev and
the making up of the first fuU 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 out
side the wergeld mean.
We learn from c. LXXX. s. 6 what the fightwite

Fightwite was for
breach of
precinct.

was : —
Incujuscumque terrafiat homi-
cidium, qui socam et sacam suam
habeat, si homicida divadietur ibi
vel cravetur, fihtwytam recipiat.
... Si occisus et locus unius
domini sint, qui socnam suam
habeat manbotam et fihtwytam.

On whosesoever land the homi
cide may be committed, he who
has soc and sac shah if the homi
cide there be pledged or remanded
receive fightwite. . . .
If the person kihed and the
place are of one lord, let him who
has the soo have [both] manbot
and fightwite.

From Norman Point of View.

331

It is clear from this that the fightwite was the Manbot
payment due to the lord who had the ' soc ' of the place ^lord of"
where the homicide occurred and the wergeld was ^ea"jsnon
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. 150c?.), and that of the
twelve-hyndeman 120s. (600<i.) as in the Laws of
Ine, s. 70.
In the so-called ' Laws of Edward the Confessor '
c. XH. is the foUowing : —

Qui scienter fregerit earn
[ps cem lag'Js] - . . lege Anglorum
suum were, i. precium suuir>, tA,
manbote de occisis erga dominos
quorum homines interfecti erant.
Manbote in Danelaga, de vilano
et de socheman, xii oras ; de
liberis hominibus iii marcas.
Manbote in lege Anglorum, regi
et archiepiscopo, iii marc de
hominibus suis ; episcopo comi-
tatus, comiti coinitatus, et dapifero
regis, xx sol; baronibus ceteris,
x solid. Emendacionem faciat
parentibus, aut guerram paciatur,
unde Angli proverbium habebant :
Biege spere of side ooer bere, quod
est dicere, lanceam eme de latere
aut fer earn.

He who knowingly breaks the
king's peace ... by the law of
the English pays his were, i.e.
ptvtium suum, and manbot of
persons killed to the lords whose
men have .been killed. Manbote
in Danelaga- of- yillanus and soche
man xii ores, of liberi homines iii
marks.1 Manbot ^n English law
to the king and archbishop iii
marks for their men ; to the
bishop and earl of a coivjjr; and
dapifer of the king xxs. : oijher
barons xs. Let him make ame. ds
to the parentes or suffer feuti-
Hence the Bnglish have a pro-|
verb, ' Buy off the spear or bear ¦
it.'

This chapter relates chiefly to the breach of the
king's peace on the king's highways &c, but it clearly
confirms the meaning of the manbot as the payment

1 Three marks are double 12 ores.

332

Anglo-Saxon Custom.

Manbot
of soche
man and
villanus
alike in
the Dane
laga.

to the lord for his man and as quite distinct from the
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 viUani and
sochemen may partly be found in the tendency after
the Conquest to class together aU subordinate tenants
rendering manual or agricultural services to the land
lord as viUani, and to ignore the differences in origin
between the various classes of tenants of fhk kin^ "*¦
Still if at this point ^^g^.inq&f^^e relative

positions of the sochm?nni 0f the Danish districts and
the viUani of 0^^.^ English manors were the
question undg^scussiOD5 [t WOuld be fair in expla
nation of i\/e equality in manbot to point out how
very nearly tne services of the two classes seem to
navejj££i<esponded so far as their value to the lord
was concerned.1
it
> 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

1 See the instances of services
of sochemen given by Mr. Round
in his 'invaluable chapter on the
Domesday book in his Feudal
England, pp. 30-34, from the
' Ely placitum' of 1072-1075: ' Qui
quotiens abbas prcccpcrit in anno

arabunt suam terram ' &c. And
again quoticnscunque ipse prce-
ccperit in anno arabunt ' &c. These
are services of the sochemanni
of Suffolk and Norfolk ' qui non
possunt recedere.'

From Norman Point of View.

30 o
00

as compared with the agricultural services of the
villanus and socheman.
However this may be, these considerations confirm
the importance of the distinction between the manbot
which varies according to the value or loss to the
lord of the person slain, and is therefore payable to
him, and the wergeld payable to the parentes of the
person slain which varied according to the grade in
social rank in which he was born or to which he
may have sometimes risen.
Further, this distinction between the wergeld and
the manbot becomes all the clearer when we turn to
the evidence given in the Laws of Henry I. regarding
the custom of Wessex in respect of the homicide of
slaves. In c. LXX. the custom of Wessex is stated thus : —

Si servus servum occidat,
domino reddantur xx sol. pro
manbota, parentibus interfecti
servi xl den.
Si dominus occisoris nee pro
eo reddit, nee servus habet unde
reddat, dimittere potest eum
dominus, ut sibi caveat, nisi forte
cravetur dum secum est ; quod si
eveniat, eum repetentibus reddat
vel inde componat.

Si hber servum occidat, simi
liter reddat parentibus xl den. et
duas mufflas, et unum puhum
mutilatum, domini servi xx sol.
pro manbota blodwitam vel fiht-
witam sicut accident.
Si servus Waliscus Anghcum
hominem occidat, debet hie cujus
servus est reddere eum domino et

(s 2) If a slave (servus) kills a When a
slave xxs. [? of 5d.] is paid to the slave is
lord for manbot, to the parentes
of the dead slave xlcZ.

killed, or
kills an
English-
(s. 3) If the lord of the slayer man.
pays nothing for him and the
slave has nothing to pay with, the
lord can dismiss him so that he
[the lord] may protect himself
from having the slave seized while
with him. But if this happen he
shall hand him over to the prose
cutors or pay for him.
If a freeman kill a slave let
him likewise pay to the parentes
xl pence and two ' muffles ' and a
capon. To the lord of the slave
xxs. [? of 5d.~] for manbot, [also]
bloodwite or fightwite as it
happens. If a slave Waliscus kills an
Englishman he whose slave he is
ought to give him up to the lord

334 Anglo-Saxon Custom.

parentibus, vel dare xl sol. pro
vita sua. Si hoc capitale noht
dare pro eo, dimittat eumliberum,
solvant postea parentes ejus

and the parentes or pay xls. [? of
5d.] for his life. If he does not
choose to pay this for his head let
him set him free ; then afterwards

weram illam, si cognacionem let his parentes pay his wergeld

habeat liberam. Si non habeat,
observent euminimici. Noncogi-
tur liber cum servo meggildare,
nisi velit ei satisfaccionem facere,
nee servus cum libero.

if he has free relations. If not
let them regard him as an enemy.
No freeman is to be compehed to
join in payment with a slave un
less he wishes to make satisfac
tion for him nor a slave with a
freeman.1

Manbot of Thus while under the Danelaga the equal man-
Wessex . °
slave. bot of the villanus and of the socheman was 12 ores
or 240J., 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 man
bot 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 viUanus 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.

1 Cf. Ine, 74. The xls. to [ who had committed homicide may
be paid for the ' Waliscus ' slave | be double value by way of penalty.

From Norman Point of View.

r» o C
ooo

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 con
cession 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.

Si quis convictus vel confes-
sus fuerit in jure, ahum occidisse,
dat were suum, et insuper domino
occisi, manbote, scilicet, pro
homine libero x sol. pro servo xx
sohd.

Est autem were theni in Mer-
chenalahe xx libr. ; in West-
saxenelahe xxv libr. ; rustici autem
c solid, in Merchenelahe, et simi
liter in Westsaxenelahe.

De were ergo pro occiso soluto,
primo vidue x sol. dentur, et
residuum liberi et consanguinei
inter se dividant.

(s. vii.) If any one shall have
been convicted of or have con
fessed the slaying of another,
let him give his wergeld and
over and above to the lord
of the person slain, manbote :
that is, for a freeman xs. [? of 5d.
or 12c?.] for a servus xx shillings.
(viii.) The wergeld, however, of
the thane under Mercian law is
xx lb. [i.e. 1200s. of 4c?.], under West
Saxon law xxv lb. [i.e. 1200s. of
5c?.] ; of the rustic cs. [? of 5cZ.
or 12cZ.] in Mercia and the same
in Wessex. (ix) Of the wergeld thus paid
for the slain person, first let x
shihings be given to the widow,
and the rest let the children and
relations divide between them.

Finally, it is interesting to observe that according Homicide
to the so-called ' Laws of Henry I.' tribal custom was man. ms"
still partly recognised in the method of. dealing with
the homicide of a kinsman.
In clause LXXV. is the following : —

Qui aliquem de parentibus
suis occidet, dignis apud Deurn
penitencie fructibus emendet; et
in modo penitencie sit, si sponte
vel casu perpetravit; et excidat
emendacio patrini sicut manbota

He who shall slay any one of
hisparentes, let hinrmake amends
by fruits of penitence worthy
before God. And let the measure
of the penance be according to
whether he did it willingly or by

336

Anglo-Saxon Custom.

domini : si non pertineat ei
utrumque, et aliorum importuni-
tate, quorum consanguineus est,
cogatur eum reddere, sapientum
hoc judicio, secundum genus, com-
ponatur.

accident. And the correction of
the sponsor falls just as the man
bot of the lord. If there does not
pertain to him either the one or
the other and by the importunity
of others whose kinsman he is he
shall be compehed to pay, let it
be compounded for by judgment
of wise men whatever that may
be.

The homicide of a kinsman was apparently still
generaUy 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.

CHABTEB XL
DANISH VIEW OF ANGLO-SAXON CUSTOM.
I. THE ' DE INSTITUTIS LUNDONIE ' — OF CNUT(?).
Having thus tried to obtain, from the so-caUed ' 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 ppintof
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 under
stood custom. Bather should special laws be re
garded 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
z

338 Anglo-Saxon Custom.
the period of the Danish invasion of England, ane
especiaUy the moment of transition from the Englisl
rule of Ethelred II. to the Danish rule of Cnut.
Danes and The founding of the Danish kingdom of Cnut was
livtfunder an epoch in English history, and indeed in the history
then- own 0f Europe. It was foUowed inter alia by the legafisa-
tion 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 fuU 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 Enghsh under theirs,
as Franks and Gallo-Bomans did under Frankish
rule. Certain things were enjoined upon both, but
with a difference. It often happens that in documents
Danish of this period the ' law of the English ' is speciaUy
sumedto explained while the Danish law is referred to as
J^J^1 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.' x
So that, from the Danish point of view, it was
sometimes a matter of inquiry and record what the

1 Laws of Cnut, s. 63 and s. 66.

navia.'

From Danish Point of View. 339
English law had been, while knowledge of Danish
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
sciUings was abolished or that Danish currency was
thenceforth the only one allowed. But, Cnut having London
styled himself ' King of all England and King of the cnut a
Danes and Norwegians,' London had become in one Plater116
sense a Scandinavian port. Seandi-
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.1 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.2
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 : 3 ' The Greater Scandi
navia, with older countries, included (counting from
the East to the West) a large district in the North
and West of Bussia extending from Kiev to Lake
Ladoga. It included Sweden, Norway, Denmark and
a strip of land in North Germany (Mecklenburg),

1 Mr. Keary's Introduction to
the Catalogue of the Coins in the
British Museum, Anglo-Saxon

series, vol. ii. p. Ixxxi.
2 Engel, vol. ii. p. 849 et seq.
3 Introduction, vol. ii. p. Ivii.

z 2

340 Anglo-Saxon Custom.
Northern England, Man, most of the Western Scottish
Islands, the Orkneys and Shetlands . . . settlements in
Ireland and colonies in the Faroes and Iceland — a
stretch of territories inhabited by peoples closely
allied in blood, in speech, and in customs.'
Was it likely, then, that Cnut in making London
the commercial capital of his kingdom should adopt
the English monetary system unchanged, without
regard to that in use in the North ?
Happily, in the document known as the ' De Insti-
tutis Lundonie ' we have an interesting ghmpse into
the conditions of the port of London, and in its final
clause definite reference to the legalisation of the
Danish currency.
The com- This document has hitherto been placed doubtfully
London, 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.
BiUingsgate, being on the river, was treated as a
port. Boats on arrival paid toU 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 Bouen, with wine or whale, paid six

From Danish Point of View.

341

shilhngs per ship and the twentieth lump of the
whale. Men of Flanders, Normandy, and France declared
their cargoes and paid toll. Goods overland through
Holland and Belgium were also examined and paid
toU. 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 ulti
mately established the Hanseatic towns and two or
three centuries later the Hanseatic league.
The final clause is as follows : —

(9) Et ut monetarii pauciores
sint, quam antea fuerint : in
omni summo portu hi, et in omni
alio portu sit unus monetarius :
et ihi habeant suboperarios
suos in suo crimine, quod purum
faciant et recti ponderis, per
eandem witam, quam prediximus.
Et ipsi qui portus custodiant,
efficiant per overhirnessam meam,
ut omne pondus sit marcatum ad
pondus, quo pecunia mea recipitur
et eorum singulum signetur ita,
quod xv orse libram faciant. Et
custodiant omnes monetam, sicut
vos doeere praecipio [? praecepto],
et omnes elegimus.

And that there be fewer
moneyers J than there formerly
were, in every chief town iii and in
every other town let there be one
moneyer. And let them have their sub-
workers under their responsibility,
so that they make pure [money]
and of right weight, under the
penalties aforesaid.
And let those who have charge
of the towns secure,under penalties,
that every weight Shah be marked
at the weight by which my money
is received, and that each of them
is so signed that xv ores make
a, pound. And let ah maintain
the coinage in accordance with
the orders we have chosen to en
join upon you and ah men.

Cnut'sores of
16d. or
£ of the
pound.

1 The word is used in the
sense of mint-master or money

coiner. See Du Cange, sub voce
' Monetarius.'

342 Anglo-Saxon Custom.
This clause has aheady been alluded to in connec
tion 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 accord
ing 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 Boman ounce of 576 wheat-grains, but that
in actual weight it had sunk below the Boman
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.

From Danish Point of View

343

And this was almost exactly one fifteenth of the
Anglo-Saxon pound.1 ?
We may therefore with some confidence regard
the ore legalised by Cnut for commercial use as
practicaUy 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
Cnut we find that by a sweeping change he reduced hiiTore
the weight of the silver penny from one twentieth of l"*^20
the Anglo-Saxon ounce to apparently one twentieth pence.
of this ore, intending, it would seem, to make his ore
pass for payments as an ore of 20 pence instead
ofl6.2 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.

1 The Anglo-Saxon pound of
240 pence or 364 grammes divided
by fifteen = 24-2 grammes.
2 The normal weight of the
English penny of 32 wheat-grains
was 1-51 grammes. The coins of
Cnut's predecessors sometimes
fully reached this standard, though
oftener somewhat below it. The
exact weight of ^ of the Danish
ore would be 1-21 grammes, and
Cnut's silver pence seem to aim at
this weight. Out of 574 silver pence
of Cnut described in the Catalogue
of the British Museum 400 weigh

between -972 and 1-23 grammes.
Only 1^ per cent, are of greater
weight. Ethelred's silver pence
were not by any means generally
of full standard* of 32 wheat-
grains or 1-51 grammes, but still,
out of 339 in the British Museum
25 per cent, are fairly up to this
standard and 90 per cent, are
above the weight of the new
silver pence of Cnut — £$ of his
ore. Cnut also reduced the size of
the pence. See the B. M. Cata
logue plates.

344 Anglo-Saxon Custom.
The fact that the ' ore of sixteen ' was in use
not only in the ' Ldws of the Bretts and Scots ' but
also in the Domesday survey, e.g. in the district be
tween the Mersey and the Bibble, 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 ' OP " GRITH AND OF
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.
Mund- The first clauses of Cnut's Church laws refer to the
brycG of
the king maintenance of the rights of the Church as to ' grith
chui°ciithe and frith.' l ' Because God's grith is of aU griths the
best, and next thereto the king's, it is very right that
God's church-grith within waUs and a Christian
king's hand-grith stand «quaUy inviolate,' so that any
one infringing either ' shall forfeit land and life unless
the king be merciful to him.' 2 A homicide within
church waUs 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,

fivepounds.

1 ' Grith ' seems to be a I Glossary, sub voce.
Danish word of nearly the same I ¦ This is in accordance with
meaning as ' frith.' See Schmid's ; Ine, 6.

From Danish Point of View. 345
as the case might be, and so ' inlaw himself to bot.'
Then the bot was to be the same as the king's ' mund-
bryce ' of five pounds.
These clauses seem to be taken from another
document of this period,1 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 2 respecting ' frith-bot ' commence with
the decree that ' grith should stand henceforth as it
originaUy stood- in the days of his [the king's] fore
fathers.' So that again ancient custom is confirmed
rather than new law enacted.
This decree of Wantage relates, not, like Cnut's The
law, to the grith of the Church, but to the grith of various
various assemblies or courts. Crimes committed with- moots-
in the grith or peace given by the king's own hand
(that is, the king's ' hand-grith ' of the other docu
ments) is again botless. The grith which the ealdor-
man and the king's reeve give in the assembly of
the ' five-burgs ' if broken involves a bot of 1200 (scil
lings?), 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
1 Laws of Ethelred, ix. (Thorpe, p. 145). 2 Thorpe, p. 124.

346

Anglo-Saxon Custom.

Grith-bryce and
mund- bryce the
same
thing.

Cnut had any intention of altering what had been
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 practi
cally the same thing, and this clause according to
the text of MS. G.1 contains an interesting aUusion
to Kentish as well as other English law.

Heafod mynstres griSbryce is
set bot wyrjmm fingu be cin-
ges munde. |> is mid • v • pundum
on Engla lage ] on cent lande
set }>a mund bryce • v • pund
]?a cingce. ~} freo ]>a, arceb.
] medemran mynstres mid • cxx ¦
scill. -pee is be cingres wite. ~j
J?onne gyt lsessan peer lytel J>eow-
dom sig ~j leger-stow ]>eah sig mid
lx scill. and feald cyricean J>aer
leger-scow ne sig mid xxx scyll.

The grith-bryce of the chief
minster in cases entitled to bot is
according to the King's mund,
that is v pounds by Enghsh law
and in Kent for the mund-
bryce v pounds to the King, and
three to the archbishop, and of a
minster of the middle class cxx
scillings, that is according to the
King's wite, and of one yet less
where there is little service, pro
vided there be a burying place, lx
scillings and of a field church
thirty scillings.

Further, there is a separate document belonging
to this period entitled ' Of Grith and of Mund ' 2 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 setheling, he had nine
days' ' grith.' If he sought, a bishop or ealdorman he

MS. G. British Museum, Cott. Nero A. 1. fol. 5.
Thorpe, p. 141, Schmid, Anhang iv.

From Danish Point of View. 347
had seven days' ' grith.' 1 Then it goes on to state Refer-
that in the law of the Kentish people ' the king and ^^sb
the archbishop had a like and equally dear mund- law-
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.' 2
Next the 'grith-law' of the South Angles is de- Grith-law
scribed. The king's mund-bryce is stated again to be °^°^h
five pounds by the law of the English ; an archbishop
and an astheling's mund-bryce three pounds ; other
bishops' and an ealdorman's two pounds : and if any
one fight in the presence of an setheling 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 Law of
Angles' law ' it stands that he who slays any one Angles.
within church waUs 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 scilhngs, 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 arch- Borh-
bishop's or astheling's ' borh ' three pounds ; a leod- ryoe
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 '

Compare jEthelstan, iv. 4.
This, from the Kentish Laws, was correctly quoted.

348 Anglo-Saxon Custom.
appear to be interchangeable. Both mean the breach
of protection or mund.
Extent of There is finaUy a fragment1 which fixes the
of etheea extent of the king's ' grith ' to be ' three miles and
grith. 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.
The soc We have seen in the clauses of the so-caUed Laws
onater 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

laws.

Schmid, Anhang xii.

From Danish Point of View.

349

to go back earlier than the time of Cnut.1 It is not
found in his laws. But the principle at the root of the
' grith ' and the ' mund ' was not one newly introduced
at this period. We shall find it again in the earhest
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 protec
tion 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 Frith of
in the accession of Cnut to the kingdom of all England, A-D- 993'
commenced with the arrival of Olaf (Tryggvason),
afterwards King of Norway, in a.d. 991. The fatal
battle of Maiden 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 : —

Gif Englisc man Deniscne
ofslea, frigman frigne, gylde hine
mid xxv pundum o]>J>on mon pone
hand-dsedan agyfe, "j do se

If an Englishman slay a Dane, Freeman's
a freeman a freeman, let him pay wergeld
for him with xxv a pounds, or let 25 P_ouncls
the slayer be delivered up. And

of silver.

1 Pollock and Maitland.i. p. 20.
But see Laws of King Edmund,
s. 4, ' On Blood-shedding.' ' Also I
make known that I will not have
to " socn " in my " hirede " that
man who sheds man's blood
before he has undertaken eccle
siastical "bot "and made " bot " to

the kindred,' &c. See also in s. 6
the use of the words ' mund-brice
and Ham-socn.'
2 Another reading has xxx.
See Schmid, p. 206. The Latin
version has xxv, and the quotation
in the Laws of Henry. I also has
xxv.

350

Anglo-Saxon Custom.

•Slave valued
rat one
pound.

The free
man is th<
twelve-hynde-
iman.

Denisca J>one Engliscan eal swa
gif [he] hine ofslea. Gif Enghsc
man Deniscne prsel ofslea gylde
hine mid punde ~] se Denisca
Engliscne eal swa gif he hine
ofslea.

let the Dane do the same by an
Enghshman if he slay him.
If an Enghshman slay a
Danish thrall let him pay for him
with a pound ; and so a Dane in
like manner, by an Englishman if
he slay him.

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 sciUings. So that the free
man of this clause is the twelve-hyndeman.1
For the purpose of this ' frith ' between Ethelred
and Olaf the twelve-hyndeman and not the twy-hynde-
man 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 free
man and the thrall ; and the thraU whether Danish or
English is paid for with a poundjof 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." '

25 x 240 = 6000 pence = 1200 Wessex scillings of 5d.

CHABTEB XII.
ANGLO-SAXON CUSTOM FBOM THE VIKING
OB NORTHMEN'S POINT OF VIEW.

I. THE COMPACT BETWEEN KING ALFRED AND GUTHRUM,
A.D. 886.
At the date of the compact between Ethehed II. and
Olaf Tryggvason more than a century had passed
since the earher compact between Alfred and The
Guthrum. And during that century the successors Danish
of Alfred had gradually succeeded in recovering °„v^onf
their hold upon the English nation. During the
whole of this time, foUowing 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 Anglo-Saxon Custom.
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 North
men, 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.' l
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 posses
sion of York, and subdued Northumbria. In 868
Mercia was invaded, and tiU 871 the incursions were
practicaUy 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
Wessejj. In 874 the ' army ' was again chiefly in
Mercia and Northumbria and began definitely to
.settle in the latter. The southern half of North
umbria became the Kingdom of York under Halfdan,
a.d. 876.
The other part of the army under Guthrum pro
ceeded to attack Wessex, and the winter of 877-8 was

1 Catalogue of English Coins, Anglo-Saxon series. Introduction,
p. xxxi, to vol. ii.

From Northmen's Point of View.

!5;

marked by the retirement, of Alfred into the island of
iEthelney. In 878 came the victory of iEthandune, 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) : —
And they ordained, if a man
should be slain we estimate ah
equally dear, Enghsh and Danish,
i.e. at viii half-marks of pure gold
except the ceorl who sits on gafol
land and their [the Danish] lys-
ings, they also are equally dear,
either at 200 scillings.
And if a man accuse a king's
thane of manslaying and he dare
to clear himself, let him do ¦ that
with 12 king's thanes, and if any
one accuse that man who is of
less degree let him clear himself
with 11 of his equals and with one
king's thane.
Now, in the first place, it is evident that this text
describes the wergeld of two classes or ranks of
persons. A A

Compact
between
Alfred and
Guthrum.

And hi ewsedon. gyf mon
ofsleegen wurfSe, eal we letac" efen
dyrne, Engliscne ~) Denisce. -b* is
to .viii. healf-marcum asodenes
goldes. buton fam ceorle fe on
gafol-lande sit ~\ heora lysingon :
pa, syndon eac efen dyre. aegoer
twa hund scyll : :
Arid gyf man cynges fegen be-
teo man-slihtas. ~) he hine ladian
durre. do he -p mid xii cynges
pegnas 'J gyf mon pone man
betyhS J>e bio* Isessa maga. ladie
hine xi his gelicena ~] anum
cyninges pegene.

Englishand Danes
equallydear.

354 Anglo-Saxon Custom.
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.
English- Let us look at these two classes separately. The
cmaFevei &rst c^ass OI" Dane and English men without other
with the definition are to be paid for by eight half-marks of
Norse *¦ .
hauld, gold. The money is Danish. Eight half-marks
normal contained thirty-two ores. And this, as we have seen,
oTaoo1 at ^e Norse ratio of 1 : 8 was the same thing as
gold soiidi 32 marks of silver. The wergeld of the hauld of the
or 1200 °
scillings. 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 tjqpical 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. 1 200 Mercian scillings of four
pence, i.e. 4800 pence, at the Norse ratio of 1 : 8
equalled 600 gold tremisses or 200 gold sofidi.
1200 Wessex sciUings 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

From Northmen's Point of View. 355 •
wergelds — that of the hauld and of the twelve-hynde
man — there seems to be the curious traditional
(conscious or unconscious) reference so often repeated
to the ancient normal wergeld of 200 gold solidi and
the heavy gold mina. At this normal wergeld Dane
and Englishman were to be held equaUy dear.
Turning now to the other class, the wergeld is English
described in English sciUings and the wergeld is that ^1 °and
of the twy-hyndeman — two hundred scillings — i.e. one pif °"
sixth of the wergeld of the other class. On the Danish with the
Norss
side the equivalent of the twy-hyndeman was the leysing.
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 remark
able clause. We are warned by it not to be drawn
too easily into a rash generahsation from the use of
the Saxon word ceorl.
It is not the ' ceorl ' as such who is the twy-hynde
man 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. A a2

356

Anglo-Saxon Custom.

King Edmund
makespayment of wergeld
voluntary.

II. THE COURSE OP PROCEDURE IN PAYMENT OF
WERGELD.
There are two statements of the course of proce
dure in the payment of wergelds which may con
veniently 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 foUowing
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.

Gif hwa heonan-fortS aenigne
man ofslea f he wege sylf fa
faehoe butan he hy mid freonda
fylste binnan twelf monoum
forgylde be fullan were sy swa
boren swa he sy. Gif hine f onne
seo msegS forlsete & him fore-
gyldan nellen f onne wille ic p
eah seo maegS sy unfah. butan
fam hand-dsedan, gif hy him
syffan ne doS mete ne munde.
Gif f onne syffan hwilc his maga
hine feormige fonne beo he
scyldig ealles f ass J>e he age witS
pone cyning J wege fa fsehoe wio"
fa maegoe f orf am hi hine forsocan
ser. Gif fonne of fare orlre
maegoe hwa wrace do on senigum
oorum men butan on fam riht
hand-dsedan sy he gefah wiri
f one cyning ~\ wiS ealle his frynd
& folige ealles f ses f e he age.
(Edmund Secular Laws, s. 1.)

If any one henceforth slay any
man that he himself bear the
feud unless with the aid of his
friends and within 12 months he
compensate it with the full wer ;
be he born as he may be. But if
his msegd forsake him and will
not pay for him, then I will that
ah the kindred be unfah [free
from the feud] except the perpe
trator, if afterwards they do not
give him either food or mund
[protection]. But if any one of
his kindred feed him, then be he
hable in ah that he possesses to
the king and bear the feud with
the kindred because they had
previously forsaken him. But if
anyone of the other kindred take
vengeance upon any other man
than the real perpetrator, let him
be foe to the long and to ah his
friends and forfeit all that he

From Northmen's Point of View.

357

Gif hwa cyrican gesece offe
mine burh ~\ hine man f ser sece
offe yflige fa f e -p detS syn fser
ylcan scyldige f e hit her beforan
cwsetS. And ic nelle ~p aenig fyhte-
wite offe man-bote forgifen sy.

(2) If any one take refuge in a
church or in my burh, and one
there seek him or do him evil, be
those who do that hable in the
same that is heretofore ordained.
(3) And I will not that any
fightwite or manbot be forgiven.

This relaxation of the rules as to payment of
wergeld seems to leave matters very much as they
were, with the one exception that for the sake of
peace and to lessen the risk of ' manifold fightings,' a
year was given to the slayer's kindred to save his
life by helping him to pay the wergeld if they chose,
while if they chose to forsake him and did not
harbour or help him in any way they were free. The
kindred of the slain in the meantime were left to
pursue their feud but only upon the slayer. This of
course was another instance of the partial breaking
down of the ancient tribal solidarity of the kindred
in favour of the principle, long before adopted in
some of the Continental codes, limiting the punishment
of crime to the criminal himself.
Whether this innovation of King Edmund's was
adhered to the evidence of the Laws of Henry I. may
lead us to doubt, but for our purpose the law making
the innovation is evidence of the ancient sohdarity of
the kindred, the attempt to loosen which had become
necessary in the tenth century.
A clause which follows shows that it was ex
pected that wergelds would stiU be paid : —

Witan scylon feehoe settan
serest sefter folc-rihte slaga sceal
his for-specan on hand syllan 3
se for-speca magum f se slaga
wille betan wiS maegoe. fonne

(7) The Witan shall appease How
feuds. First according to folkright wergelds
the slayer shall give pledge to his he^Lij
forespeca and the forespeca to
the kindred that the slayer will

358

Anglo-Saxon Custom.

syffan gebyred f man syhe fses
slagali for-specan on hand -Ji se
slaga mote mid grioe nyr 3 sylf
wseres weddian. Donne he faes
beweddod haebbe fonne finde he
f eerto waer-borh, fonne f gedon sy
fonne rsere man cyninges munde
of fam dsege on xxi niht gylde
man heals-fang. faes on xxi niht
manbote, faes on xxi niht faes
weres f frum-gyld.

Earlier statement
of how
wergeldswere to
be paid.

The
werborh.

make bot to the kindred. Then
after that it is requisite that
security be given to the slayer's
forespeca that the slayer may in
peace come near and himself give
wed for the wer. When he has
given wed for this let him find
thereto a Werborh. When that is
done let the King's mund be
levied. Within 21 days from that day
let the halsfang he paid.
21 days from that the manbot.
21 days from that the frumgeld
of the wer.

The further course of procedure is best given in
the earlier fragment aUuded to.
The fragment * is headed ' How a twelve-hynde
man shall be paid for.' It opens with the statement,
' A twelve-hyndeman's wer is twelve hundred scillings.
A twy-hyndeman's wer is two hundred scillings.'
And then it proceeds : —

Gif man ofslsegen weoroe gylde
hine man swa he geboren sy.
And riht is f se slaga siff an he
weres beweddod haebbe finde
f serto wser-borh be fam f e f serto
gebyrige -p is set twelf-hyndum
were gebyriao1 twelf men to wer-
borge, viii faedereii-msegoe -] iiii
medren-msegoe.

If any one be slain let him be
paid for according to his birth.
And it is right that the slayer
after he has given wed for the
wer find in addition a werborh
according as shah thereto
belong, that is to a twelve-hynde's
wer twelve men are necessary as
werborh, viii of the paternal kin
and iv of the maternal kin.

This is in accordance with the clause in Alfred
and Gu thrum's compact, which, however, makes the
additional provision by way of precaution that one

1 Thorpe (p. 75) appends this
clause to the so-cahed Laws of
Edward and Guthrum. But

Schmid considers it as a fragment
and places it in his Anhang vii.

From Northmen's Point of View.

359

of the twelve co-swearers must be a king's-thane.
The clause continues : —

Donne -p gedon sy fonne raere
man cyninges munde, -p is ^ hy
ealle gemaemim handum of segoere
msegtSe on anum wsepne fam
semende syllan -p cyninges mund
stande.

When this is done, then let
the king's mund be established,
that is, that they ah of either
kindred, with their hands in com
mon upon one weapon, engage to
the mediator that the king's
mund shall stand.

Of fam daege on xxi nihtan
gylde man cxx scill. to heals-fange
set twelf-hyndum were. Heals-
fang gebyreo1 bearnum broSrum
~) faederan ne gebyreS nanum
maege f [feoh] bute fam f e sy
binnan cneowe.
Of fam dsege fe f heals -
fang agolden sy on xxi nihtan
gylde man fa man-bote faes
on xxi nihtan -p fyht-wite faes
on xxi nihtan faes weres •p frum-
gyld ~) swa forS ¦p fulgolden
syonfamfyrste fe witan gerseden.
Siff an man mot mid lufe ofgan
gif man [wihe] fulle freondrsedene
habban. Eal man sceal set cyrhscum
were be f sere msetie don f e him
to-gebyreS swa we be twelf-hynd
um tealdan.

In xxi days from that day let
cxx shillings be paid as heals-fang
at a twelve-hynde's wer. Heals-
fang belongs to the children,
brothers and paternal uncles : that
money belongs to no kinsman ex
cept to those that bewithin the knee.
In xxi days from the day that
the heals-fang is paid let the
manbot be paid. In xxi days
from this the fightwite. In xxi
days from this the ' frumgyld ' of
the wer ; and so forth tih it be
fully paid within the time that the
witan have appointed. After this
they may depart with love if they
desire to have full friendship.
Ah men shah do with regard to
the wer of a ceorl that which be
longs to his condition hke as we
have said about a twelve-hynde-

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

The king's
mund.

The king's mund-byrd, as we have seen, was equal
to five pounds according to both English and Kentish
custom.

The heals-
fang.

The man.
bot and
fightwite and then
the wer-
geld.

360

Anglo-Saxon Custom.

before the Viking invasions of England. But of this
we cannot be certain.

Frag
ments preserved of ancient
custom.

UnderMercian
law the
oath of
twelve-hyndeman = that of
six ceorls.

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 : —

Be Merciscan Afte
Twelf-hyndes mannes aS fors-
tent vi ceorla ao1 forf am gif man
fone twelf-hyndan man wrecan
sceolde he biS full-wrecan on syx
ceorlan ~] his wer-gyld biS six
ceorla wer-gyld.

Of the Mercian Oath
A twelve-hyndernan's oath
stands for six ceorls' oaths; be
cause if a man should avenge a
twelve-hyndeman he will be fully
avenged on six ceorls and his
wergild will be six ceorls' wer
gilds.

This fragment of Mercian law is preceded in the
group of fragments ' on oaths ' in Thorpe's edition of

From Northmen's Point of View.

361

the Laws by the following, which may or may not be

of Mercian origin

Msesse-preostes aS ~] woruld-
f egenes is on Engla-laga geteald
efen-dyre 3 for fam seofon ciric-
hadan fe se maesse-preost furh
Godes gif gef eah -p he haefde he
biS f egen-rihtes wyroe.

A mass-priest's oath and a Mass-
secular thane's are in English-law priest's
reckoned of equal value ; and by °*~ =.
, , , 1-, tbat of
reason of the seven church-degrees tjje tjjane
that the mass-priest through the
grace of God has acquired he is
worthy of thane-right.

The other fragment of Mercian law is as follows : —

Ceorles wer-gild is on Myrcna
lage cc scill. Degnes wer-gild is
syx swa micel -J5 biS xii hund scill.
Donne biS cynges anfeald wer-gild
vi f egna wer be Myrcna lage ¦p is
xxx fusend sceatta J -p biS
ealles cxx punda. Swa micel is
f ses wer-gildes on folces folc-rihtes
be Myrcna lage. And for fam
cyne-dome geboraS ooer swilc to
bote on cyne-gilde. Se wer gebirao"
magum ~] seo cyne-bot fam
leodum.

A ceorl's wergeld is by Mercian
law cc scillings. A thane's wer
geld is six times as much, i.e. xii
hundred scillings. Then is a
king's simple wergeld vi thanes'
wer by Mercian law, i.e. xxx
thousand sceatts, and that is alto
gether cxx pounds. So much is
the wergeld in the people's folk-
right by Mercian law. And for
the ' Cynedom ' there is due
another such sum as bot for cyne-
gild. The wer belongs to the
kindred and the cynebot to the
people.

Mercianwergelds.

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 sciUings. The Mercian scilling
was 4d., and thus, as stated in the text, the king's
wergeld would equal exactly 1201. 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

362 Anglo-Saxon Custom.
example of Charlemagne, superseded the ' sceatt ' by
the ' penny ' of 32 wheat-grains.
Fragment The fragments printed by Thorpe under the head-
PeSe-s ing ' North People's Law ' and by Schmid in his
Law. '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, especiaUy when it is considered that the
Viking ' armies ' had established themselves, not only
in East Angha and Mercia, but stiU more completely
in Northumbria, many years before the struggle
with Wessex had ended in the compact between
Alfred and Guthrum.
The fragment of ' North Beople's Law ' * opens
with the statement that the king's gUd is 30,000
thrymsas — 15,000 for the wergeld and 15,000 for the
people (leodum).
In another MS. the wording foUows the statement
of Mercian law very closely, and agrees with the
above in describing the amount in thrymsas.
Wergelds Dees cyninges wer-gyld sie mid
paid in Engla cynne on folc-riht fryttig
of 'threT-5 ]'usend frhnsa ~} ]'*ra xv .M. sien
pence. I?263 wseres ~) oora xv ,M. faes
cynedomes. Se wsere belympaS
to fam msegSe faes cyne-cynnes ~j
•p cynebot to fam land-leod.

Let the king's wergeld be with
the English race by folkright,
30,000 thrymsas, and of these let
15,000 be for the wer and the
other 15,000 for the cynedom.
The wer belongs to the kindred
of the king and the cynebot to the
people.

Now, in the first place, what was the thrymsa,
which occurs in these clauses for the first time ?
A statement a little further on in one of the two
1 Schmid, Anhang vii. 2 ; Thorpe, p. 79.

From Northmen's Point of View.

563

texts of the same fragment fixes the value of the
thrymsa at three pence.1
The statement of ' North Beople's Law ' proceeds
as foUows : 2 —
Arces ~j aeoelinges wer-gyld is
xv fusend frymsa.

Biscopes ~} ealdormannes viii
fusend frymsa.
Holdes J cyninges heah-ge-
refan iiii fusend frymsa.
Msesse-f egnes ~) woruld-f egnes
ii fusend frymsa.
Ceorles wer-gild is cc. ~) Ixvi
f rim. f biS ii hund scih be Myrcna
lage.

(2) An archbishop's and an
aetheling's wergeld is xv thousand
thrymsas. (3) A bishop's and an ealdor
man's viii thousand thrymsas.
(4) A hold's and a king's high-
reeve's iv thousand thrymsas.
(5) A mass thane's and a secu
lar thane's ii thousand thrymsas.
(6) A ceorl's wergeld is cc and
lxvi thrymsas, that is cc scillings
by Mercian law.

But into tabular form these wergelds would be
as follows in thrymsas and Wessex and Mercian
scillings : —

King's wergeld 15,000, cynebot 15.000
Archbishop's and iEtheling's
Bishop's and Ealdorman's .
Holdr's and King's high-reeve's
Mass thane's and secular thane's
Ceorl's 

Thrymsas 30000 =

Wessex
shillings of 5tf.
18000

Mercian
shillings of 4rf.
22500

15000 =

9000

11250

8000 =

4800

6000

4000 =

2400

3000

2000 =

1200

1500

266* =

160

200

The ceorl has a twyhynde wergeld in Mercian
shillings and the thane a twelve-hynde wergeld in
Wessex shillings. There seems to be so far some
confusion. But on the whole this reckoning seems
to justify the opinion generaUy held that the North
men 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.

1 A ceorl's wergeld is eclxvi
thrymsas, i.e. cc scillings by Mer
cian law. 266f x 3 = 800 pence

.or 200 Mercian scyhings of 4

pence.

From the text of MS. D.

364 Anglo-Saxon Custom.
Wergeld If, as seems reasonable, these fragments may be
doubTeld referred to the .period following upon the Viking
the'tifane con(luest an(^ settlement in Northumbria and the
but after ' foundation of Halfdan's kingdom of York (a.d. 876),
Alfred's victory then the doubled wergeld of the hauld may be
equally perhaps the high-water mark as it were of the invasion
dear. — foe 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 earher unequal
settlement, now agreed to make Dane and Enghsh
man equally dear.
A stiU more interesting point than the doubhng
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.1
Chance And gif Wilisc man gefeo f [ (7) And if a Wihscman
^ve^.°. he haebbe hiwisc landes ] msege thrive so that he have hiwisc
man to cyninges gafol forti-bringan, fonne landes and can bring forth the
rise as bi<5 his wergild cxx scill. And gif king's gafol, then his wergeld
in the he ne gefeo buton to healfhe hide I shall be cxx scillings. And if he
aws o fonne si his wer lxx scill. j only comes up to a half hide then
shall his wer be lxxx scihings.
And gif he aenig land niebbe ~) (8) And if he have not any
f eah freoh sy forgilde hine man j land and yet be free, let him be
mid lxx scill. paid for with lxx scihings.

1 The fragment itself is a com- also points out that the eorl had
bination of two or more. But the I not yet superseded the ealdorman.
statement of wergelds in thrym- ] See Einkitung, p. lxv.
sas seems to unite them. Schmid

From Northmen's Point of View. 365
The other version is practically the same : —
And Wealisc-monnes weregild (7) And a Wealisc-man's wer-
gif he beo to tham gewelegod ¦p he ! geld if he be so enriched that he
hyred ~j eht age ~] fam cyng gafol j has family and goods (hyred and
gyldan maeg hit biS f on ccxx scill. eht ) and can pay the King's gafol
Ac he ne bitS butan to healf hyda shall be ccxx scillings [? cxx].
gerysen fonne sie his were lxxx , And if he be risen ut to half a
scih. j hide, then shall his own wer be
Gif he landnsebbe ac bio" freoh j lxxx scillings.
gyld mon lxx scill. (8) If he have no land but is
i free let him be paid for with lxx
\ scihings.
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 impor
tant one.
It is probable that these clauses are variations
or fuller expressions of the tradition described in c. 32
of King Ine's Laws, which is as follows : —

Gif Wylise mon haebbe hide
londes his wer bit5 c. xx scill., gif
he fonne hsebbe healfe lxxx scill.,
gif he nsenig haebbe lx scillinga.

If a Wylise man have a hide
of land his ' wer ' shall be exxs.,
but if he have half a hide lxxxs.,
if he have none lx s.

And the additional information amounts practi
cally 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

366

Anglo-Saxon Custom.

How under
early cus
tom a
ceorl
could rise
into the
twelve-hynde
class.

or twelve-hynde position. We are now no longer
dealing with the Wylise 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 foUows : —
ix. And gif ceorhsc man gefeo
•p he hsebbe v hida landes to
cynges ut-ware ~j hine man ofslea
forgilde man hine mid twam fus
end frimsa.
x. And feah he gefeo f he
haebbe helm j byrnan J golde
fasted sweord, gif he f land nafaS
he bi(5 ceorl swa feah.
xi. And gif his sunu J his
sunu-sunu ¦p gefeoS f hi swa
micel landes habban sif f an bio' se
ofsprinc gesiocundes cynnes be
twam fusendum.
xii. And gif hi ¦p nabbaS ne to
fam gef eon ne magan gilde man
cirlisce. |
And they may be translated thus :-

ix. Gif ceorl sie gewelegod to
fam f [he] age v hyda landes j
mon hine ofslea gyld hine mon
mid ii-.M. frimsa.
x. And gif he begytaS f he
haebbe byrne "j helm ~j ofergyl-
denene sweord, feah fe he land
nsebbe he biS siScund.
xi. And gif his sunu ~j faes
sun-sunu -p begyten f he swa
micel landes habbaS sien Mora
after-gengas faes siScundafn]
cynnes 3 gyld fam mon mid
ii .M. frimsa.

9. And if a ceorlish man thrive
so that he have v hides of land to
the king's utware and any one.
slay him, let him be paid for with
2000 thrymsas.1
10. And though he thrive so
that he have a helm and coat of
mail, and a sword ornamented
with gold, if he have not that land
he is nevertheless a ceorl.

9. If a ceorl be enriched to
that degree that he have 5 hides
of land to the king's utware and
any one slay him, let him be paid
for with 2000 thrymsas.
10. And if he acquire so that
he have a coat of mail and a helmet
and an overgilded sword, if he
have not that land he is [? not]
sithcund.

1 2000 thrymsas of 3d. equalled
1200 Wessex scillings of 5d., so
that the ceorl with five hides to
the king's utware became a
twelve-hynde man. There is no
allusion to the six-hynde status as
a halfway step towards the gesith-

cund status. And the use of the
word ' gesithcund ' seems to throw
back the original date of these
clauses to that of Ine's law, the
word not being used in later laws.
See Schmid' s Glossary, sub voce
' Gesith.'

From Northmen's Point of View.

567

11. And if his son and the
son's son acquire that they have
so much land, let their suc
cessors be of the sithcund kin and
let them be paid for with 2000
thrymsas.

II. And if his son and his
son's son so thrive that they have
so much land, afterwards the off
spring shall be of gesithcund race
at 2000 (thrymsas).
12. And if they have not that
nor to that can thrive, let them
be paid for as ceorlish;
These passages are very important, as the most
direct evidence we possess of the way in which under
early Anglo-Saxon custom families became gesithcund
by the gradual growth of a kindred whose kinsmen,
like the odal-men of the Norse laws, could reckon
four generations in succession of sufficient land-
holding. 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 equaUy to another of Another
these valuable fragments — ' Of people's ranks and fragment,
law.' It, too, seems to look back and to record farther
what once had been the custom of the conquered jnforma-
* tion.
people.

Hit wses hwilum on Engla
lagum "p leod -j lagu for be gef inc-
Sum J fa wssron [feod-] witan
weoroscipes wyroe aslc be his
mseSe, eorl "j ceorl, fegen ]
feoden.

1. It was whilom, in the laws
of the Enghsh, that people and
law went by ranks, and then were
the Witan of worship worthy each
according to his condition, eorl
and ceorl, thegeriand theoden.

These are the phrases of a writer looking back
with regret upon ancient custom which to him is
past or passing away.
After this foUow clauses in one of which the

368

Anglo-Saxon Custom.

word hyrede and the phrase ' having so many hides
to the king's utware ' again occur, words that seem to
suggest that this fragment, while describing ancient
English custom, hails from a somewhat similar source
as the ' North Beople's Law.'

And gif ceorl gefeah f he
hsefde fullice fif hida agenes landes,
cirican ~\ kycenan, beh-hus "J
burh-geat, setl ~) sunder-note, on
cynges healle fonne wses he
f onon-forS, f egen-rihtes weoroe.

2. And if a ceorl thrived so
that he had fully five hides of his
own land, church and kitchen,
bell-house and burh-geat, seat and
specialdutyintheKing'shah, then
was he thenceforth of thane-right
worthy.

This seems to be practically identical with clause 9
of the previous fragment. Then foUows : —

And gif fegen gefeah f he
f enode cynge ~\ his rad-stefne rad
on his hirede, gif he fonne hsefde
fegen f e him filigde f e to cinges
ut-ware fif hida hsefde J on
cynges sele his hlaforde f enode &
friwa mid his serende gefore to
cinge se moste syf f an mid his for-
aoe his hlaford aspelian set mistli-
can neodan ~J his onspaece gersB-
can mid rihte swa hwaer swa he
sceolde. And sef e swa gefogenne for-
wyrht an naefde swore for sylfne
sefter his rihte offe his f olode.
And gif fegen gefeah f he
weari5 to eorle fonne wses he
syffan eorl-rihtes weorSe.

And if a thane thrived so that
he served the King and on his
summons (rad-stefne) rode with
his household (hirede), if he then
had a thane who him followed, who
to the King's utware five hides
had, and in the King's hah served
his lord [the thane] and thrice
with his errand went to the
King, he might thenceforth with
his foreoath his lord represent at
various needs and his plaint law
fully conduct wherever he ought.
4. And he who so prosperous
a vicegerent had not, swore for
himself according to his right, or
it forfeited. 5. And if a thane thrived,
so that he became an eorl, then
was he thenceforth of eorl-right
worthy.

These passages we shall have to consider further
when we sum up the evidence upon the Anglo-Saxon
division of classes.

From Northmen's Point of View 369
But there are two peculiarities which may be The ceorl
marked here as pointing to the archaic character of into direct
these precious fragments. First, the alliteration and toThe6
rhythmical character of some of them, which points }m% ayid
J < r to having
to an early and traditional origin, and, secondly, the a kindred
direct relations of the classes mentioned to the king. him.
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
shaU 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.

B B

CHABTEE XIII.
EABLY ANGLO-SAXON CUSTOM.

Alfred'slaws not
earlier
than the
Compact
with Guthrum.

I. KING ALFREDS 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 coUected 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 fuU 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 da}Ts 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 con
venient 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.

King Alfred's Dooms.

371

We have seen that in the Cofnpact with Guthrum Were the
the Anglo-Saxon ' ceorl who sits on gafol-land ' and ceorfand
who was made ' equally dear ' at 200 sciUings with g^"
the Danish lysing was, if the words may be taken equiva-
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 contem
porary 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 : —

Gif hwa on ciorhsces monnes
flette gefeohte mid syx scih. gebete
fam ceorl. Gif he waepne gebrede
j no feohte sie bi healfum fam.
Gif syx-hyndum fissa hwaeSer
gelimpe friefealdlice [arise be
faere ciorliscan bote, xii-hyndum
men twyfealdlice] be faas syx-
hyndan bote.

If any one fight in a ceorhsc The ceorl
man's net with six scillings let below the
him make bot to fhe ceorl. If he ^"nlynde'
draw his weapon and fight not
let it be half of that. If, however,
either of these happen to a six-
hynde man let it increase three -
foldly according to the ceorlisc
bot; to a twelve-hyndeman two-
foldly according to the six-hynde's
bot.

The ceorlisc man in this section takes the place

B B 2

372 Early Anglo-Saxon Custom.
of the twyhynde man in contrast with the six-hynde
and twelve-hynde classes. The payments are the
bots payable to the owners for fighting within their
sacred precinct or inclosure, and the amounts foUow
ing the proportions of the wergelds of the three
classes are : —
Ceorlisc man's . . . .6 scillings
Six-hyndeman . . . .18 „
Twelve-hyndeman . . .36 „
In this section the ceorlisc class seems clearly to take
the place of the twy-hynde class. They seem to be
identical. Section 40 gives similar evidence, in connection
with the burg- or burh-bryce or breach of the fence
of the sacred precinct.
Cyninges burg-bryce biS cxx | The King's burh-bryce shah
be cxx scillings. An archbishop's
ninety scihings. Any other
bishop's and an earldorman's lx
scihings. A twelve-hyndeman's
xxx scillings. A six-hyndeman's
xv scillings. A ceorl's edor-
breach v scillings. . . .

scill. ./Ercebiscopes hund nigontig
scill. OtSres biscepes & ealdor-
monnes lx scill. Twelf-hyndes
monnes xxx scih. Syx-hyndes
monnes xv scill. Ceorles edor-
bryce v scill. . . .

The ceorl Here again the ceorl takes the place of the twy-
iTnde hyndeman, and the burh-bryce is graduated accord
ingly, the twelve-hyndeman's being six times the
ceorl's. King's  120 scihings
Archbishop's  90 „
Ealdorman's or bishop's ... 60 „
Twelve-hynde's  30 ,,
Six-hynde's  15 „
Ceorl's edorbreach .... 5 „
There may weU be some delicate significance in
the word burh-bryce being applied only to the

King Alfred's Dooms. 373
tw*elve-hynde or six-hynde men, and not to the ceorl,
as though the word burh could not be applied to the
ceorl's homestead. His ' flet,' surrounded by its edor
or hedge, was perhaps too humble to be classed with
the moated or waUed enclosure of the burh of the
higher landed classes without a change of epithet. But
there is nothing to show that the ceorl of this clause
is not identical with the ordinary twy-hyndeman.
Lastly, in sections 10 and 18 the three classes
are again described as twelve-hynde, six-hynde, and
ceorlisc ; while in sections 29, 30, and 31 they are
described as twelve-hynde, six-hynde, and twy-hynde.
AU this seems to show that for general purposes
' twy-hynde ' and ' ceorlisc ' were convertible terms.
It can hardly be said that there is anything in
King Alfred's laws making a distinction between
the twy-hynde class and the ceorlisc class. There
seems to be nothing to suggest that the twy-hynde
wergeld was confined to any particular section of
the ceorlisc class. And therefore, so far as the
laws of Alfred are concerned, the description of the
twy-hynde class in the Compact with Guthrum as Ceorls
gafol-geldas equaUy dear with the Danish lysing mostly
would seem to apply generally to the ceorlisc class |eidas.
as a whole. And this being so, it would seem pro
bable that, speaking broadly, by King Alfred's time
the chief practical division of classes had aheady
resolved itself into that between the landed classes
on the one hand and their gafol-paying tenants on
the other.
It is quite true that under King Alfred's laws
there is the six-hynde class between the twelve-hynde
and the twy-hynde or ceorlisc class ; but his laws tell

374 Early Anglo-Saxon Custom.
us nothing about this six-hynde class except what
may be inferred from the fact that its members
certainly were not included in the ceorlisc class. It
can hardly be likely that King Alfred could, in his
compact with Guthrum, have confined the twy-hynde
class to the ' ceorl who sits on gafol-land,' leaving out
the six-hynde class altogether, if, in his laws, he
meant by the six-hynde class the ceorls who did not
sit on gafol-land. It might have been possible to
suppose that he used the word ' ceorl ' in his laws in a
wider sense, as including both twelve-hynde and twy
hynde, had he not introduced the six-hynde class
between them and restricted the meaning of the word
' ceorhsc ' to the twy-hynde class. He used it ap
parently to distinguish the twy-hynde from the other
classes which by inference were not ceorhsc.
What the six-hynde class was and what the
ceorlisc class was under West-Saxon law two centuries
earlier than King Alfred's day must be left to be
discovered from the evidence of the Dooms of Ine.
The , In the meantime, the consideration of the position
mund- . L
byrd of the ceorlisc class having brought before us the
bryce of penalties for breach of the precinct and for fighting
classes! within the precinct of the various classes, it may be
weU to consider also the evidence of King Alfred's
laws upon the mund-byrd or borh-bryce of what we
may regard perhaps as the official classes, and in
which apparently, at this date, even the twelve-hynde
man had no part.
The mund-byrd or borh-bryce seems to be con
fined to those in official or judicial position.
Already in King Alfred's laws we have lost the

King Alfred's Dooms. 375
word ' grith ' as we had already in Cnut's laws lost
the later phrase ' sac and soc,' but the tribal principle
underlying the meaning of the words remains the
same and becomes all the clearer as we go back in
the evidence.
In s. 3, the borh-bryce and mund-byrd of the
king are stated to be five pounds of' mserra paminga,'1
an archbishop's three pounds, and those of the eal-
dorman and lesser bishops two pounds, exactly as they
were reported to have been in Cnut's time in the
1 grith-law ' of the South Angles.2
The almost indiscriminate use of the two terms in its tribal
this clause suggests again the very shght distinction on8in
between them. The man who by giving his pledge
placed himself artificially, so to speak, under the mund
or protection of a person in a judicial position or
authority and broke his pledge became guilty of
borh-bryce or mund-byrd, it hardly mattered which.
The penalty apparently included both crimes in one.
If we might use the Brehon phrase it was the enec-
lann, or honour price of the person whose dignity was
injured, which had to be paid.
But, as we have seen, these penalties were not only
personal but also connected with the sanctity of what
under Brehon law was caUed the ' maigin ' or pre
cinct. The Brehon tract which declares the extent
of the 'inviolable precinct' of the ' boaire-chief ' to
reach as far as he can throw a spear or hammer
from the door of his house, also states that those of
higher chieftains extended by multiples of this accord-
i1 I.e. of pure silver. Com- I Pistense, a.d. 864, quoted supra,
iare the same phrase ' de novis p. 191, n.
it meris denariis ' in the Edietum \ 2 See supra, p. 344.

376

Early Anglo-Saxon Custom.

ing to their honour-price, so that the inviolable precinct
of the ri-tuath extended to sixty-four spear-casts from
his door.1 We have already quoted a fragment fixing
the extent of the king's ' grith ' at ' three mUes and
three furlongs and three acre breadths and nine feet
and nine hand-breadths and nine barleycorns from
the burhgeat where the king is.' 2
The ceori Under King Alfred's laws, as we have seen, the
geidahad penalties for breaking into this precinct and com-
peacerf6 mhting crimes in it were payable to the person whose
coukU) ' Peace ' was tnus broken, and were not confined to
broken. the official classes as the mund-byrd and borh-bryce
were. They went back to the tribal root-idea of the
sanctity of the hearth and homestead of every tribes
man. They extended from the king to the ceorl
through all grades. The penalties for fighting within
the precinct were practicaUy the same in amount as
those for the breaking into it. The penalty for
fighting in the ceorlisc-man's 'flet' was practicaUy
the same as that for breaking through his 'edor'
into it.
When all these penalties are put side by side in
the form of a table two points become evident.
First, how far removed the social position of the
twelve-hyndeman was from that of the ealdorman.
The penalty for fighting within his precinct is not
much more than a third of that of the bishop and
ealdorman, the inference being that his official
position was much lower than the ealdorman's.
Secondly, when we compare the figures in the
three columns, while the burh-bryce and fightwite of

Ancient Laws of Ireland, vol. iv. p. 227.
See supra, p. 345.

King Alfred's Dooms.

377

the twelve-hynde, six-hynde, and twy-hynde classes
are both graduated in proportion to their wergelds
and very closely resemble, one another, it is curious
to notice that the fightwite is based upon a duo
decimal and the burh-bryce on a decimal system
of reckoning, as if they had been derived from
different original sources. If King Alfred had
originated them he would probably have made them
ahke. In the following statement, collected from the
several sections of King Alfred's Laws for purposes
of comparison and future reference, the amounts are
stated in Wessex sciUings of five pence.

Borh-bryce and
mund-byrd

Burh-bryce

.Fightwite

(8-8)

(s. 40)

Of the king

(5 lbs) 240 s.

120«.

(s. 7) (in the
king's doom)

Of the archbishop

(3 lbs) 144 s.

90s.

(s. 15) 150 s.

Of other bishops and

(2 lbs) 96 s.

60s.

(s. 15) 100 s.

ealdorman

Of do. in his ' gemot ' .
(s. 38) 120 s.
Of the twelve-hynde
30*.
(a. 39) 36 s. 1
man
Of the six-hyndeman .
15 s.
(s. 39) 18 s.
Of the ceorhsc man or
5 s.
(s. 39) 6 s.
twy-hynde man
II. THE DIALOGUE OE EGBERT, ARCHBISHOP. OF TORE
A.D. 732-766. ECCLESIASTICAL OATHS AND
WERGELDS.
There is a gulf of nearly two centuries in the
West-Saxon evidence between the laws of Alfred and
the ' Dooms ' of Ine.1
1 Ine came to the throne in a.d. 688, and Alfred's treaty with
Guthrum was in a.d. 880.
Charle
magne.

378 Early Anglo-Saxon Custom.
We are taken at a leap, not only beyond all
thought of the Northmen's invasions, but also half
a century behind another great epoch of European
importance. The Empire of Charlemagne formed a kind of
watershed in Anglo-Saxon as in European history,
and was marked, as we have seen, by a permanent
change in the currency of the Western world.
Pf°Ntioth ^e Courts of Offa and Egbert were intimately
umbria connected with the Imperial Court of Charlemagne,
time of and the transition from the early Anglo-Saxon
currency of sceatts to that of the heavier pence was
a typical result of the influence of the Empire. It
may be that the supremacy of Wessex under Egbert
was indirectly another result of it.
The kingdom of Egbert did not extend over
Northumbria, and Northumbria had its own inde
pendent connection with the Court of Charlemagne.
It had its own mode of monetary reckoning in
' thrymsas,' and from the Northumbrian fragments
aheady examined we have gained some ghmpses
into its ancient customs.
The document next to be examined refers to
Northumbria, and, as it dates from the period imme
diately preceding the time of Charlemagne, it helps
to bridge over the gulf between the Laws of Alfred
and Ine.
Egbert, It is in the form of a Dialogue or set of questions
bisnop Put to Egbert, Archbishop of York, by his priests,
with his answers thereto, and its date may be about
a.d. 750.
Egbert, Archbishop of York, was an important
figure in Anglo-Saxon history. The brother of

of York
K.j>. 750.

Dialogue of Archbishop Egbert.

379

Eadbert, the Northumbrian king, the recipient on
his accession to his episcopal dignity of the remark
able letter of Bede describing the religious anarchy
of his diocese, the founder of the great school at
York, in which his pupil Alcuin was educated and
from which he migrated to the Court of Charles the
Great, Egbert was an important personage, and the
centre of beneficent influence in the Northumbrian
church and kingdom,
Moreover, this document, so far as it goes and His
as regards the matters mentioned in it, deals with an™cLi-
the questions raised by it avowedly from an eccle- cfv°mt
t. j j of view.
siastical point of view. The great ecclesiastic
comes down upon his diocese from a wider world.
He had been educated and ordained deacon at
Borne. And just as in the monastic rules of St.
Benedict Boman weights and measures were adhered
to, so when this archbishop has to speak of money
matters, ignoring aU local currencies, he still thinks
and speaks and calculates in the terms of the Boman
Imperial currency, and* not in Anglo-Saxon sceatts
and sciUings, or in the thrymsas of Northumbrian
usage. The Dialogue contains several interesting clauses.
The first to be noticed is in answer to the ques- What to
tion as to the value to be attached to the oaths of value of
the bishop, priest, deacon, and monk. The reply *eel^^
is : —

Ordines supradicti, secundum
gradus promotionis, habeant
potestatem protestandi : presbiter
secundum numerum cxx tributa-
riorum ; diaconus vero juxta nu
merum lx manentium ; monachus

The said orders according to
their grade of promotion shall
have power of protestation.
The priest to the number of
cxx tributarii ; the deacon up
to the number of lx ' manentes ; '

380

Early Anglo-Saxon Custom.

In Mercia
priest's
oath of
same
value as
that of
the thane.

vero secundum numerum xxx tri-
butariorum, sed hoc in criminali
causa. Casterum si de terminis
agrorum oritur altercatio, pres-
bitero liceat juramenti sui ad-
testatione terram videhcet unius
tributarii in jus transferre seccle-
siaa. Duobus quoque diaconis id
ipsum conceditur. Testificatio
vero trium monachorum in id
ipsum sufficiat.

the monk to the number ' xxx
tributarii,' i.e. in a criminal
cause. But if the dispute has
arisen about the boundaries of
lands it shah be lawful to the
priest on attestation of his oath
to transfer, into the right of the
church, land, i.e. of one tributa-
rius. To two deacons also the same
is conceded. Let attestation of
three monks suffice for the same.

Now, it seems very unlikely that such a question
as this about the value of oaths should be asked of
the Archbishop if it had already been settled by
law in Northumbria. And so we seem to see him here
making a claim and laying down a principle for the
first time in Northumbria the foUowing of which
resulted in his priests being put upon a par with the
secular thane as regards the value of their oaths.
The principle that one man's oath was worth
more than another's we have seen aheady stated in
the undated fragment on ' Mercian oaths,' which
very possibly represented ancient tradition.
A twelve-hynde oath stands for six ceorls' oaths, because if a
man should avenge a twelve-hyndeman he will be fully avenged on
six ceorls and his wergeld will be six ceorls' wergelds (p. 360).
And, further, the right of the priest to be put on
equal footing with the thane we have seen recog
nised in another fragment.
A mass priest's oath and a secular thane's are in English law
reckoned of equal value, and by reason of the seven church
degrees that the mass priest through grace of God has acquired,
he is worthy of thane-right (p. 361).
The same principle was recognised in the further
fragment on the North Beople's wergelds.

Dialogue of Archbishop Egbert.

381

The usual statement in Continental and Anglo-
Saxon laws as regards compurgation is that a man
must clear himself by his oath and the oaths of so
many oath-helpers. But in the Laws of Ine, with
which the Archbishop was doubtless conversant, an
other method was followed in some cases. A man
must clear himself, not with the oaths of so many
oath-helpers, but with an oath of so many hides.
The claim of the Archbishop seems to favour the
view, suggested but hardly established by various
passages in the Laws of Ine, that the twelve-lrynde-
man's oath was reckoned at 120 hides.1
AU that one can say is that the Archbishop in oaths of
claiming that the Northumbrian priest's oath should hid™'"17
be regarded as one of ' 120 tributarii ' seems to have
had in his mind what was afterwards generaUy con
ceded, i.e. that the priest should be put, in social
position, on a par with the thane or twelve-hynde
man. Moreover, the Archbishop's use in this con
nection of the phrase ' so many tributarii ' or
' manentes,' instead of so many ' hides,' is interesting.
It helps us to understand that the hide as used in
the Laws of Ine was probably the same fiscal or
gafol paying unit as the familia of Bede.
Another clause in this interesting document
bears more directly upon the question of- homicide,
and it is valuable as giving information quite inde
pendent of the Laws.
It is the answer of the Archbishop to the question,

1 See Schmid's Glossary sub
voce Eideshulfe.' There is only
one mention of oaths of so many
hides in the later Anglo-Saxon

laws, viz. in Alfred, s. 11, in which
it is stated that a woman must
clear herself from a charge of
previous unchastity with 60 hides.

382

Early Anglo-Saxon Custom.

The wergelds
of the
clergy to
be paid
to the
church.

Stated in Roman
silver
currency.

' What if a layman shall kill a cleric or a monk,
whether the precium sanguinis according to the law
natalium parentum shall be paid to his near relations
or whether his seniores are to be satisfied by a larger
amount — which does your Unanimity sanction ? '
The reply is as follows : —

Quicunque vero ex laicis occi
derit episcopum, presbiterum, vel
diaconum, aut monachum, agat
poenitentiam secundum gradus
poenitentise constitutes, et reddat
precium aecclesiae sua? ; pro epi-
scopo secundum [placitum] univer
salis consilii, pro presbitero octin-
gentos siclos, pro diacono sexin-
gentos, pro monacho vero quadrin-
gentos argenteos ; nisi aut dignitas
natalium vel nobilitas generis
majusreposcat precium. Nonenim
justum est, ut servitium sanctas
professionis in mehori gradu
perdat quod exterior vita sub laico
habitu habuisse jure parentum
dinoscitur.

Whoever indeed of laymen
shah have killed a bishop, priest,
or deacon or monk shah do pen
ance according to the constituted
scale of penitentials, and let him
pay the price to his church — for
a bishop according to [the
decision] of a general Council :
For a priest . 800 sich
For a deacon . 600 sich
But for a monk . 400 argentei1
unless dignity of birth or nobility
of kindred demand a greater pre
cium. For it is not just that service
in a holy profession in a higher
grade should lose what secular life
in lay dress may be recognised to
have by right of parentage.

The wergelds here stated for the clergy are stated
in sicli and argentei. The Boman argenteus, as we
have seen (after Nero's time), was the drachma of
silver, and the siclus was a didrachma or quarter of
an ounce. The Archbishop, therefore, was claiming
200 ounces of silver as the wergeld of his Northum
brian priest.
Whether he knew it or not, this amounted in
value to 4000 sceatts (of 20 to the ounce), i.e. 800
Wessex and 1000 Mercian scillings. So that in

1 The monk's oath was one fourth of ths priest's in value : so 400
argentei = one fourth of 800 sicli.

Dialogue of Archbishop Egbert. 383
claiming for his priest a wergeld of 200 ounces of
silver he does not seem to have had in his mind
either the Mercian or the Wessex twelve-hyndeman's
wergeld, of 1200 scillings, of 5 or 4 sceatts, but,
possibly, as we shaU see, a Kentish wergeld of 200
Kentish scillings of 20 sceatts.
The Archbishop's claim faUing short of what was Priest's
ultimately granted in Northumbria is curious as tobe^oo
showing that Northumbrian law, at this time, before ^°™e°of
the inroads of the Norse invaders, was still unsettled, silver-
and that the Archbishop may have been influenced
by Kentish rather than by West-Saxon or Mercian
precedents. It was after another century, and after
the Norse invasion and conquest, that the wergelds
of the mass-thane and secular-thane in the ' North
Beople's Law ' were stated to be alike at 2000
thrymsas, or 1200 Wessex shillings. How much
earlier the equation was made in Northumbria we
know not.
The next clause to be noticed is that in reply to
question viii., viz. ' If any monks shall mix them
selves up with sacrilege, should you now prosecute,
if the avengement of the crime pertains to laymen
who are their relations ? '
The reply is as -foUows : —
[Apostolus dicit,] omnes causas j The Apostle declares that ah
aecclesiae debere apud sacerdotes
dijudicari. Si qui vero aecclesi-
astici crimen ahquod inter laicos
perpetraverint, homicidium, vel
fornicationem, vel furtum agentes,
hos placuit a secularibus in quos
peccaverunt omnimodo occupari ;
nisi animo fuerit aBcclesias pro
talibus satisfacere. Laici vero

ecclesiastical causes should be
settled by priests. But if any
ecclesiastics have perpetrated
any crime among laymen, homi
cide or fornication or theft, it
has been decreed that they be
fohowed up in every case by lay
men against whom they have
sinned, unless it be the intention

384

Early Anglo-Saxon Custom.

\

Ecclesias
tical causes to
be settled
by priests.

qui sacrilega se contagione mis-
cuerint velatis, non eodem modo
quo lex publica fornicarios puniri
percensuit, set duphcato xxx
siclorum pecunia, hoc est lx argen-
teos volumus dare ecclesias adul-
terantes, quia graves causae
graviores et acriores querunt
euras.

of the Church to make satisfaction
for them. But laymen who shall
have joined in sacrilegious inter
course with nuns [shah be dealt
with] not in the same manner as
the public law decrees fornicators
to be punished, but double — by the
sum of xxx sicli — i.e. we wish
adulterers to give to the Church
lx argentei, because severe cases
require severer and sharper cures.

This passage once again makes it clear that in
this ecclesiastical document of the Archbishop of
York 30 sicli = 60 argentei or Boman drachmas.
And, apart from this monetary question, the
clause is interesting as marking the claim that aU
ecclesiastical causes should be settled by the clergy
themselves. In case of crime by an ecclesiastic against a
layman the Church reserved the right to stop the
layman's prosecution by payment of the wergeld or
other satisfaction. At the same time the Church
was to claim double compensation from laymen
committing crime against nuns. It is impossible to
disassociate this document from the letter of Bede
describing the religious anarchy of the diocese caused
by the abuses of the loose monastic system in vogue,
and urging the newly appointed prelate, who was
not yet Archbishop, to undertake their energetic
reformation. But for the present purpose the real worth of
these statements is the independent evidence they
give of the continued strength of the wergeld system
and the force of tribal custom in the Northumbrian

Dialogue of Archbishop Egbert. 385
kingdom before the Norse invasions. The sense of The
individualism in Christianity was opposed to the sucmc '
solidarity and joint responsibility of the kindred. c™hh^
But instead of fighting against the wergeld system wergeld
the Church had actually succumbed to it, and
adopted it for its own advantage, placing a money
price upon the blood of its several ecclesiastical
ranks, making the value of the priest four times that
of the monk.
The system of compurgation, again, was a part of
tribal usage. The Church adopted it and graduated
the worth of the oaths of its various grades according
to secular usage, making the oath of the priest in
evidence four times the value of that of the monk.
In other words, in England, as on the Continent,
the clergy, instead of combating tribal custom in
these matters, took their place in the order of secular
rank according to their several grades, bishops
claiming the wergeld of princes, and priests that of
thanes, with, however, the obviously useful reser
vation that if their secular rank by parentage and
birth should be higher than their ecclesiastical grade,
the higher wergeld should be theirs.
All this we see in the course of being introduced
into Northumbrian usage in answer to local inquiry
and local needs, upon the authority of perhaps the
very wisest of Saxon prelates.
The wisdom of such accommodation as this on
the part of the Church to pagan tribal usage is not
the matter in question. The point of the evidence
is the proof it gives of the continued strength of
tribal usage in England after many generations of
occupation and settlement. c c

386 Early Anglo-Saxon Custom.

III. THE DOOMS OF INE, A.D. 688-725.
The Dooms of King Ine occupy so important a
position as the earliest direct information upon Anglo-
Saxon custom apart from Kent that they demand
careful separate study.
We ought to be able to learn something from them
of the aim and spirit of legislation in Wessex two
centuries before King Alfred added them to his laws.
ine's There is no reason, I think, to suspect that the text
apart from of the Dooms of Ine was altered by Alfred. The words
Alfred's. airea(jy quoted in which he says that in his Dooms he
collected together what he thought ' rightest ' of those
things which he met with of the days of Ine and
Offa and Ethelbert without adding much of his own
are quite consistent with his preservation of King
Ine's laws as a whole, though in some points differing
from his own.1
King Ine came to the throne in a.d. 688, and he
states in his preamble that he issued his 'Dooms'
with the counsel of Cenred his father and of the
Bishops of Winchester and London (who had aheady
had twelve or thirteen years' experience in their sees)
and also with the counsel of all his ealdormen and
his Witan : —
f te ryht saw j ryhte cyne- So that just law and just kingly
domas Jmrh ure folc gefsestnode ¦ dooms might be settled and
S getrymede wjeron, f te namig \ established throughout our folk ;
ealdormonna ne us under-gejieo- , so that none of theenM-onnennor
dodra after fam waire awendende of our subjeots should hereafter
|ias ure domas. , pervert these our dooms.
' See Schmid's introduction, I placing Ine's Dooms before
where he states his reasons for I Alfred's in his edition of the Laws

The Dooms of Ine.

387

We mark, then, at once that at this period the The
most prominent public official was the ealdorman. a\hir™an
From clause 8 and clause 9 we learn that private ?Xcl™i
revenge for a wrong was forbidden before justice had position.
been demanded from a ' " scir-man " or other judge.'
And that the ealdorman was a shire-man we learn
from another clause (clause 36).

Sefe feof gefeho" ojibe him
mon gefongenne agifS ~] he hine
J>onne alaste o])pe fa piefSe
gedierne forgielde fone Jjeof [be]
his were.
Gif he ealdormon sie folie his
scire buton him kyning arian
wille.

(36) Let him who takes a thief
or to whom one taken is given,
and then lets him go, or conceals
the theft, pay for the thief accord
ing to his wer.
If he be an ealdorman let him
forfeit his ' shire ' unless the King
be merciful tojiim.

Burg-bryce mon sceal betan
c. xx scill. kyniges J biscepes Jiaer
his rice biS. Ealdormonnes lxxx
scih. Kyniges fegnes lx scill.
GesiScundes monnes land-haeb-
bendes xxxv scill. ~j be ]>on
ansacan.

)/

Here, as in Alfred's Law^s, the ealdorman is an
official with judicial jurisdiction. And we learn more
about his social status as compared with that of
other classes from s. 45.

(45) Bot shall be made for the
King's burg-bryce, and a bishop's
where his j urisdiction is, with cxx
shillings ; for an ealdorman's
with lxxx shihings ; for a King's
thane's with lx shihings ; for that
of a gesithcund-m&n having land
with xxxv shihings : and accord
ing to this let them make legal
denial.

The burg-bryce is the same thing as the burh-
bryce — the breaking into the burh. And if we
compare the ' bots ' of this clause with the burh-
bryce of King Alfred's s. 40 (supra, p. 372) we see that
he was not merely copying King Ine's clause. Nearly
as they may resemble one another, there are marked
differences between the two clauses.

Burg- bryce of
variousclasses.

C c

388 Early Anglo-Saxon Custom.
The king's burh-bryce in King Ine's Laws is the
same as King Alfred's. The ealdorman's is eighty scil
lings instead of sixty. The king's thane takes the
ealdorman's place with sixty, and the gesithcund-man's
burh-bryce in King Ine's Laws is practicaUy the same
as the twelve-hyndeman's in King Alfred's laws.
The The gesithcund-man we have met before in
gesith- °
cund- one of the fragments of early English law, but so
judicial far as relates to Wessex he appears in the Dooms of
position. jne r-OT tke £rgt an(j iast time, and we shaU have to
consider by-and-by how far he is the same person as
the twelve-hyndeman. But for the present it is
sufficient to note that he is mentioned along with the
king's thane and the ealdorman apparently in order
to state the extent to which his oath was to be taken
as valid in judicial evidence, or whatever is meant by
the words ' and according to this make legal denial'
Laws as The chief obstacle to the maintenance of the peace
' i seems to have been the frequency of thefts and
V homicide of all kinds. The connection between homi
cide and theft is the subject of several clauses in the
Laws of Ine. And as they bring into notice the
liability of the kindred it may be well to consider
them in order.
These are some of the clauses in the Laws of King
Ine with reference to the slaying of a thief : —

Gif Jieof sie gefongen swelte
he deaoe ofjie his lif be his were
man aliese.
Cierlisc mon gif he oftbetygen
wsere gif he sat sifestan sie
gefongen slea mon hond [of] offe
fot. Gif feorcund mon o]i|>e fremde
butan wege geond wudu gonge k

(12) If a thief be seized let him
perish by death or let his hfe be
redeemed according to his wer.
(18) A ceorlisc man, if he have
often been accused, if he at last
be seized, let his hand or foot be
cut off.
(20) If a far-coming man or a
stranger journey through a wood

The Dooms of Ine.

389

ne hrieme ne horn blawe, for
p eof he bio" to profianne offe to
sleanne offe to aliesanne.

out of the highway and neither
shout nor blow his horn he is to
be held for a thief either to be
slain or redeemed.

Then comes the question what happens if a man The ge-
should seize a thief 'and slay him as a thief. The ILdredrf
next clause goes on to state that in the case of the the thief'
thief slain in the wood the slayer must declare that
he slew the man for a thief, and then neither the lord \
nor the ge-gildas of the slain could demand a wergeld. '
But if he should conceal the slaying and it became
known after a time, the way was open for the kindred
of the supposed thief to exculpate him by oath and so
claim his wergeld, from the slayer.
Where there is no concealment, the kindred of
the thief must swear that there shall be no vengeance
on him for delivering up the thief.

Se [f e] f eof gefeho' [he] ah x.
scih. -] se cyning f one f eof "] fa
mffigas him swerian aSas un-
fashoa.

(28) He who seizes a thief shah
have ten scihings and the king
the thief ; and let the kindred [of
the thief] swear to him oaths of
' unfaehthe.'

If the man who had seized the thief let him go
he was liable to pay ' wite ' — and if, as we have seen,
an ' ealdorman ' did so it was at the risk of losing
his ' shire.'
Theft seems to have been an increasing crime, for
further on in Ine's Laws there are repetitions of
some of these clauses, with slight additions, showing
that the Dooms of Ine were added to from time to
time (s. 35 and s. 27).
We have seen how severe a penalty was attached
to the crime against the king's peace of letting a thief

390

Early Anglo-Saxon Custom.

The ceor
lisc and
the gesith
cundclasses.

once seized escape. The following clause is still more
severe upon any one harbouring a fugitive thief or
other outlaw, and it introduces again the division of
classes as regards wergelds into gesithcund and
ceorlisc, but without mentioning the wergelds of each
class.

Gif mon cierhscne monnan
flieman-feorme teo be his agnum
were geladige he hine. Gif he
ne maege gielde hine [be] his
agenum were ] se gesiomon [eac]
swa be his were.

The oaths
to be in
theirhyndensof co-
swearers.

(30) If a man accuse a
ceorhsc-man of harbouring a
fugitive [thief?] let him clear
himself according to his own wer.
If he cannot, let him pay for him
according to his own wer, and the
gesith-man in like manner ac
cording to his wer.

This ' clearing himself according to his own wer '
aUudes evidently to the oath of himself and his oath-
helpers and shows that the oath required to clear
the gesithcund-man from the charge was a greater
one than that required to clear a ceorhsc-man. This
was doubtless the case throughout, but apparently it
had become needful to strengthen the oath of both
classes. The following clause required that in the
oath of both the gesithcund and ceorlisc-man in denial
of homicide there should be among the oath-helpers
' a King's oath of 30 hides.'

Sef e biS wer-fashSe betogen -]
he onsacan wille f sbs sieges mid
aoe fonne sceal bion on pmxe
hyndenne an kyning [aeoe] be xxx
hida swa be gesiocundum men
swa be cierliscum swa hwseoer
swa hit sie. Gif hine mon gilt
fonne mot he gesehan on fara
hyndenna gehwelcere monnan
[and, but not in H] byrnan "]
sweord on -Ji wer-gild gif he fyrfe.

(54) He who is charged with
wer-fcehthe and he is willing to
deny the slaying on oath ; then
shah there be in the ' hynden ' one
king's oath of 30 hides as well
for a gesithcund-man as for a
ceorlisc-man whichever it may
be. If he has to pay him, then
may he give the man of any one
of those ' hyndens ' a coat of mail
and a sword in the wergeld if he
need.

The Dooms of Ine. 391
The last part of the clause is ambiguous, but
on the whole, taking into account the Latin of the
' Quadripartitus ' and Liebermann's suggested transla
tion and the difficulty of the various other suggested
readings, I think it is most probable that the mean
ing may be, that if the man charged cannot get the
required 'king's oath' or that of another hynden
without paying for it, he may give ' a coat of mail
and a sword ' to the ' hynden ' if it should be needful.
We may have to recur to this section, but without
attempting to build anything upon this more than
doubtful addition to it. Nothing important, I think,
turns upon it.
The foUowing is important as showing that both Both
CiflSS&S
the gesithcund and ceorlisc classes were under the must
military obligation to follow to the fyrd. the fyrd.

Gif gesiocund mon landagende
forsitte fyrde geselle cxx scill. ~)
f olie his landes, unlandagende lx
scill. cierlisc xxx scih. to fierdwite.

(51) If a gesithcund-man own
ing land neglect the fyrd, let him
pay 120s. and forfeit his land,
one not owning land 60s. ; a ceor
lisc-man 30s. as fyrd-wite.

The recurrence in so many clauses of Ine's Laws
of the division of classes into gesithcund and ceorlisc
leads to the conclusion that it must have been a very
prominent one.
It was accepted in the Laws of Ine as a fact
existing and of common knowledge, with no mark
upon it of novelty or innovation. The distinction
was evidently ancient and radical, and yet the word
' gesithcund ' is not met with in any later laws.
Throughout the 76 clauses of the Laws of Ine
only one makes direct mention of the division of

392 Early Anglo-Saxon Custom.
Mention classes into twelve-hynde and twy-hynde, the distinc-
six-7and ' tion so generally made in the later laws, and in this
classes1"16 clause> as m King Alfred's Laws, the six-hynde class
also appears : —

Aet twy-hyndum were mon
sceal sellan to mon-bot xxx scih.
aet vi-hyndum lxxx scih. sat twelf-
hyndum cxx.

(70) With a twy-hyndeman's
wer shah be given as man-bot xxx
scihings with a six-hynde's lxxx
scihings, [? lx s.], with a twelve-
hynde's cxx scihings.1

The man-bot was, as we have seen, the payment to
a lord for the loss of his man.
There is an indirect mention of wergelds in s. 34,
which states that any one who has been in a foray
in which a man has been slain must prove himself
innocent of the slaying and make bot for the foray
according to the wergeld of the slain. If his wergeld
be 200s. he must make bot with 50s., and the hke
justice was to be done with respect to the ' dearer
born.' We may assume from this and the later evidence
that already the wergeld of the twelve-hyndeman
was 1200 scillings, and that of the twy-hyndeman
200 scillings, though in the Dooms of Ine this is not
otherwise directly stated. The laws take it for
granted that the amount of the wergelds was common
knowledge, as in so many other cases.
The six- The mention of the six-hynde class in addition to
nyndeclass. the twelve-hynde and twy-hynde classes makes it a
matter of importance to learn what manner of
persons were included in the six-hynde class.

1 This is repeated in Henry I. lxix.

The Dooms of Ine.

593

The Laws of King Alfred, as i we have seen,
generally mention the six-hyndeman with the other
classes, but without giving any clue to an answer to
the question to what social rank he belonged. In
the Laws of Ine, however, a distinct clue is given,
and it is one which accords with Continental usage
and suggests a reason for the disappearance of the
six-hyndeman from the later laws. He is mentioned
again after King Alfred's time only in the so-caUed
Laws of Henry I.
The clauses relating to this subject are impor
tant enough to claim consideration in a separate
section. One other important social distinction, or divi- Thegafoi-
sion of classes, appears already in the Laws of Ine, fhe gebur.
viz. that which existed between possessors of land
and gafol-geldas and geburs who were, as we should
say, tenants on the land of others. We shall have
to return to the consideration of this distinction and
to note the fac| that it is in these Laws of Ine that the
gebur appears, as almost the equivalent of the gafol-
gelda, - while they afford incidental evidence also
that the typical holding of the gafol-gelda (and thus
of the gebur) was the ' yardland ' or virgate of
open-field husbandry.
The mention of the gafol-gelda and the gebur
occurs in s. 6.

Gif hwa gefeohte on cyninges
huso sie he scyldig ealles his
ierfes ~j sie on cyninges dome
hwseoer he lif age f e nage. Gif
hwa on mynstre gefeohte hund
twelftig scill. gebete. Gif hwa on

(6) If any one fight in the
king's house, let him be hable in
ah his property and be it in the
king's ^ooms whether he shah or
shah not have life.
If any one fight in a minster,

394

Early Anglo-Saxon Custom.

ealdormonnes huse gefeohte offe
on oorer gefungenes witan lx
scill. gebete he ~\ ooer lx gesehe to
wite. Gif he fonne on gafol-geldan
huse offe on gebures gefeohte
cxx scill. to wite gesehe ~) f asm
gebure vi scill.

And feah hit sie on middum
felda gefohten hund twelftig scill.
to wite sie agifen.

let him make bot with cxx scil
lings. If any one fight in an ealdor
man's house or in any other
distinguished wita's, let him
make bot with lx scihings and
pay a second lx scillings as
wite. But if he fight in a gafol-
gelda 's house or in a gebur's, let
him pay cxx scillings as wite, and
to the gebur vi scillings.
And though it be fought on
midfield let cxx scillings be given
as wite.

The gafol-
gelda and
geburhave only
a six
scillingfightwite.

This clause is inteUigible if we foUow the prin
ciple that fighting anywhere is a breach of the king's
peace. The king, therefore, in every case and
wherever it happens is entitled to a wite of 120
sciUings. But if it happens within the house or
precinct of an ealdorman or of any other chief
member of the Witan the amount is divided between
the king and his official. If the fighting is in the
precinct or house of a gafol-gelda or gebur the king
still gets his fuU wite of 120 sciUings, and an addi
tional six sciUings is to be given to the gebur,
just as in King Alfred's Laws the same amount is
to be given to the ceorlisc man for fighting in his
'flet.' This clause forms a valuable groundwork of
evidence as to the position of the gafol-gelda under
West Saxon law, and we shall have to recur to it
when we further consider the position of the ceorlisc
class at the date of King Ine's Dooms. The omission
of the gesithcund class from this section, unless
included as distinguished members of the Witan,

The Dooms of Ine. 395
can hardly be accidental, but it is not easy at first
sight to divine a plausible reason for it.
Let us for a moment try to recognise the position
to which so far the Dooms of Ine have brought us.
We seem able in those already quoted to trace
a process at work combining distinctions of classes of
different origins and based upon different lines of
thought. We find a very marked and prominent division of
classes into gesithcund and ceorlisc alongside of
hardly more than incidental mention of the division
of classes so prominent afterwards into twelve-hynde
and twy-hynde. In King Alfred's Laws we could trace
no practical distinction between the twy-hynde and
ceorlisc classes. We could not distinguish between
them. All distinction at any rate evaded our notice.
We have now to ask the double question what was
the distinction between gesithcund and twelve-hynde,
as weU as what was the distinction between ceorlisc
and twy-hynde.
The chief question raised by King Alfred's Laws
was whether any great distinction existed between
the ' ceorl who sits on gafol land ' and other
members of the ceorlisc class. The Laws of King
Alfred gave us no clue on this point. , It seemed
as though, after all, the ceorlisc class must have
been so generally gafol-geldas that practically the
twy-hynde and ceorlisc class might be spoken of
roughly and inclusively as ' ceorls who sit on gafol
land,' and that this ' sitting on gafol land ' might be,
after all, the fairly distinctive mark of the ceorlisc
class for whom King Alfred claimed a twy-hynde
wergeld as ' equally dear ' with the Danish lysing.

396

Early Anglo-Saxon Custom.

The gafol-
gelda and
gebur of
Ine's laws
put in the
place of the
ceorlisc man
of King
Alfred.

fighting in his house or his
King Alfred's Laws, s. 39.
If any one fight in a ceorlisc
man's net, with six scillings let
him make bot to the ceorl.

And now in this clause 6 of King Ine's Laws we
find the gafol-gelda or gebur put directly into the
place of the ceorlisc man of King Alfred's Laws with
the same penalty of six scillings payable to him for
' flet.' King Ine's Laws, s. 6.
But if he fight in a gafol -
gelda's house or in a gebur's, let
him pay .... to the gebur six
scihings.
It might be said at first sight that here surely is a
clear trace of the degradation of the ceorl into a gafol-
gelda during the 200 years between the Laws of King
Ine and King Alfred. Eor, it might be said, the ceorl
of King Alfred's Laws has the same bot for the fighting
in his house as that which the gafol-gelda had under
Ine's Laws 200 years earlier. This may be so. But
how do we know that the gafol-gelda of King Ine's
time was not already the typical ceorl as he seems to
have been in King Alfred's time ? In that case there
would be no sign of degradation of the ceorl into the
gafol-gelda. Or at any rate if there had been a degra
dation from some original higher position and status
it had already taken place before the time of King
Ine. Our judgment on the position of the ceorlisc
class under King Ine's Laws must still be reserved.

IV. THE POSITION OF STRANGERS IN BLOOD UNDER
KING INE'S LAWS. — THE SIX-HYNDEMAN.
strangers The question of the position under West Saxon
in blood. ¦*¦ .
law of strangers m blood is one of much interest,
and we have reserved the clauses relating to it for
separate consideration.

The Dooms of Ine.

391

conqueredinhabi
tants treated ? •

There may have been several different classes of
strangers. How far there was a considerable substratum of How were
T Tl P PR Y 1 1 P T"
conquered Bomano-British inhabitants is a very
vexed question. That there were such in the out
lying and recently conquered districts is certain.
Mr. Coote's view may not be wholly mistaken that a
Bomano-British population, living, as on the Con
tinent, under their own laws and customs, existed in
most districts, especially in the towns.
These strangers may some of them have had land
and some of them not. Certainly not all of them
were regarded as theows or thralls.
To what class, then, did they belong ? And how ;
were they treated? What degree of freedom was granted
them, and what was their wergeld, if they had any ?
It is to the Laws of Ine that we must go for the
answers to these questions. And we start on the
inquiry seeking light also upon the position of the
as yet unexplained six-hynde class so often mentioned
in the Laws of King Alfred but never in the later
laws. The only hint we have had as yet as to the meaning
of the six-hynde class is whether gesithcund-men not
having land may not have belonged to it.
The wergelds of the ordinary classes of tribesmen The weaih
were doubtless too well known to require more than maw with
incidental mention in King Ine's Dooms, but there ™t=wes
are several clauses or fragments of clauses specially hynde-
mentioning the wergelds of the weaih and of the
Wilisc-m&n.

Weaih gif he hafaS fif hyda he
bi<5 syx hynde.

24) A weaih if he have five
hides 'he shall be six-hynde.'

398 Early Anglo-Saxon Custom.
Gif Wylise mon haebbe hide | (32) If a Wylisc-man have a
londes his wer biS cxx scill. gif | hide of land his wer shah be cxx
scillings, but if he have half a hide
lxxx scillings, if he have none lx
scillings. (33) The king's ' horse-wealh '
who can do his errands, his
wergeld shall be cc scillings.

he fonne haebbe healfe lxxx scill.
gif he naenig haabbe lx scillinga.
Cyninges hors-wealh sefe him
maege geaerendian fees wer-gield
biS cc scih.

It will be noticed that the wergeld of the
Wilisc man with one hide of land is one fifth of
the wergeld of the weaih wdth five hides, so that
wealhs and Wilisc men seem to be treated on the
same lines — as if the two words meant the same
thing.
TheGaiio- It is not easy to draw a distinction between the
'waia: ' weaih ' and the ' Wilisc ' man. ' Wilisc ' is certainly
used as the adjective corresponding to ' weaih,'
though sometimes (as e.g. in ' Wilisc ale ') for some
thing specially Welsh. In the Lex Salica, as we have
seen, the Gallo-Boman living under Boman law,
according to the Malberg gloss was a ' Wala ' with a
wergeld half that of the ' ingenuus ' living under
Salic law. And, without pushing this meaning so far
as Mr. Coote was inclined to do, we may fairly, I
think, look upon the word ' weaih ' as generally
embracing not only natives of Wales and West Wales,
but also the wider class of persons of the conquered
populations, whether Welsh or Britons or Bomano-
Britons, who were not recognised as of Anglo-Saxon
blood. We may call in the later evidence of the
Northumbrian Briest-law 1 in illustration. The use of
1 Schmid, Anhang ii.

The Dooms of Ine. 399
ores and half-marks in this document and its being, so The
to speak, domiciled in York, seem to connect it with wmu 0"f
the period of the Northmen's conquest of Northumbria, Yorkshire-
when York was its capital and as yet the tide of
battle had not been turned — i.e. shortly before the
date of the Compact between Alfred and Guthrum.
In this Briest-law the penalty for the practice of
heathen rites on the part of a king's thane was ten
half-marks, and if he wished to deny the charge it
must be with ten named by himself, ten named by
his kindred (maga), and ten Wallerwente, and if he
failed in the denial he had to pay the ten half-
marks, half of which went to the church and half to
the king.
And so also in the case of the ' landagende man '
who had to pay six half-marks : he too must deny
with as many of his like (gelicena) and as many
icente as the king's thane. And so also in the case
of a ' cyrhsc ' man.
It is quite clear that these Wallerwente were free
inhabitants of the district, for their oaths were
taken in evidence, which would not have been done
had they been theows. The Wallerwente were,
on the other hand, not recognised as ' ceorlisc '
Saxons. They were obviously the native Celtic
inhabitants of the great plain of York 1^-the gwent
or basin of the Derwent and the Ouse. The locality
is fixed by the clause which restricts the Sabbath
day's journey on necessity to six miles out of
York.

1 Schmid, Glossary, sub voc. ' Die Britischen Einwohner von
Cumberland.' But the mention of York is conclusive.

400

Early Anglo-Saxon Custom.

Under
Erankish law the
Gallo-
Romanshad half-
wergelds.

The
weaihwith five
hides had
a ha I f
wergeld.

Now, we have seen that under Frankish laws the
Gallo-Boman population living under Boman law
had ZiaZ/'-wergelds. If the freeman living under Salic
law had a wergeld of 200 solidi the 'Bomanus
possessor ' had a wergeld of 100 solidi. And so in
the same way, returning to the Laws of Ine, while
the gesithcund or other landed Wessex freeman was
a twelve-hyndeman, the weaih who had five hides
was reckoned as six-hynde.
We have seen that the English ceorl who rose to
the possession of five hides and paid gafol to the
king, and with coat of mail and over-gilded sword
followed to the fyrd, became gesithcund with a wer
geld of 1200 scillings. It is quite in accordance
with tribal feeling as shown in Continental usage that
the stranger in blood, whether Welsh or Bomano-
British, who* had risen in the same way to the
possession or occupation of five hides should be six-
hynde with a half- wergeld of 600 sciUings.
We have quoted the Northumbrian Briest-law
and noted that its penalties in half-marks and ores
suggest that it belongs to the period before King
Alfred's Compact with Guthrum, during which
York was the capital of the Northmen's kingdom.
It is interesting to see that in the fragment of North
Beople's Law quoted in the previous chapter, belong
ing probably to the same district and to the same
period, some of the clauses with reference to the
Wilisc man are evidently copied from the Laws of
Ine though with some additional matter and perhaps
some slight errors in the figures.
And if a Wihsc-man thrive so that he have a hide of land and
can bring forth the King's gafol, then is his wergeld 120 scihings.

The Dooms of Ine. 401
And if he thrive not except to half a hide, then let his wer be 80
scihings. And if he have not any land, let him be paid for with
70 scilhngs [? 60].
And it is worth notice that it was in this very The con-
document that the Northmen as conquerors, while Northmen
leaving the Enghsh wergeld of the thane at 2000 g™d*^
thrymsas or 1200 sciUings, gave to their own 'hold' wergeld u\V1G6 LlllXti
a double wergeld of 4000 thrymsas. of the
We may therefore regard the six-hyndeman of
King Ine and King Alfred's Laws as probably the
Wilisc man with five hides or more. There does not
appear to be anything in King Alfred's Laws to lead
us away from this conclusion. Any other would
leave the complete silence of King Alfred's laws with
regard to the Wilisc class unexplained, unless it could
be considered that in the turmoil of the Northmen's The six-
invasions and the stress of war the Wilisc class had ciSsdied
already become more or less amalgamated with the oat'
Saxon population by the force of their common
interests against the invaders.
The silence of the later laws as to a six-hynde
class may probably be explained by the same con
siderations. Bassing from the Wilisc man who was six-hynde TheWiiisc
in consequence of his landed position to the Wilisc ine's law
man viewed simply as a stranger in blood, there is asworthy
further evidence that as a stranger he was regarded 2? th:f ,
° _ ° Enghsh-
as only half as ' worthy ' as an Englishman. In man.
s. 46 of Ine's Laws it is stated that an oath-worthy
person charged with theft is to deny the charge with
an oath of 120 hides if the accuser be an Englishman,
but with only 60 hides if the accuser be a Wilisc
man. D D

402

Early Anglo-Saxon Custom.

In the
' Ordi
nance of
the Dun-
setas '
strangers have only
half-wer-
gelds and
must go
to the
ordeal as
not oath-
worthy.

Donne mon monnan betyhS
•p he ceap forstele offe forstolenne
gefeormie fonne sceal he be lx
hyda onsacan faere fiefoe gif he
aS-wyrtSe bio'.
Gif fonne Enghsc onstal ga
forrl onsace fonne be twy-fealdum.

Gif hit fonne bio1 Wilisc onstal
ne biS se aS na f e mara.

(46) When a man charges
another that he steals, or har
bours stolen cattle, then shall he
deny the theft with lx hides if he
be oath-worthy. If, however, an English
charge- of theft * come forward,.
let him then deny it with twice as
many. But if it be a Wilisc charge,.
the oath shah not be the increased
oath.

This clause does not tell us whether the Wilisc
man was considered to be oath-worthy or not.
Brobably he would not be as against a Saxon. It
only states that when the charge of theft was made
by an Englishman the oath was to be one of twice
as many hides as would be required to deny the
charge of a Wilisc man.
Corroborative evidence as regards the half-wer-
gelds and oath-worthiness of the weaih class may be
found in an ordinance of later date, but belonging to
Wessex, and it may be quoted as throwing strong
light upon the position of the Wilisc or weaih class
(wealpeode) in apparently a border district, where
Saxons and wealhs met together with a boundary of
a river between them. It is entitled an ' Ordinance
respecting the Dun-setas.'2
The leading fact throughout this document is
that the two peoples met avowedly as strangers.
Its aim was to keep the peace and to protect the
owners of cattle on each side of the stream from the
raids of their neighbours on the other.

1 See Schmid's note on this I 2 Thorpe,
passage, and see also Lieber- Anhang i.
mann's translation.

p. 150 ; Schmid.

The Dooms of Ine.

403

They are recognised as strangers to each other
and on principle treated reciprocally as such. Denial
of a charge by oath and oath-helpers, unless by
special agreement, is assumed to be of no use and
evidently out of place between strangers in blood.
Consequently the ordeal was the only answer to a
charge of theft.

Ne stent nan oSer lad aet
tihtlan bute ordal betweox Wealan
& Englan, bute man f afian wille.

There stands no other purga
tion in an accusation save the
ordeal between Wealas and
English unless it be allowed.

This was fully in accordance with tribal custom
no less than the further fact that their wergelds were,
obviously for the same reason, to be half- wergelds.

Gyf Weaih Engliscne man
ofsleane f earf he hine hiden-ofer
buton be healfan were gyldan ne
iEnghsc Wyliscne geon-ofer fe
ma sy he f egen-boren sy he ceorl-
boren healf wer fser aet-fealo1.

If a Weaih slay an English
man he need not pay for him on
this side except with half his wer,
no more than the Englishman for
a Wyhsc on that side, be he thane-
born, be he ceorl-born, one half of
the wer in that case falls away.

In this document the weaih is treated according These
to tribal principle as a stranger in blood, both as menwere
regards recourse to the ordeal, and the half- wergeld. mWessex-
And the word ' wyliscne ' is used as the appropriate
adjective distinguishing the weaih from the English
man. So that in this case ' weaih ' and ' wylise ' mean
the same thing. Further, this evidence, though later
in date probably than King Alfred's Laws, is practi
caUy Wessex evidence, because, though the geo
graphical position of the Dun-setas is not accurately
D D 2

404

Early Anglo-Saxon Custom.

known, their connection with the West Saxons is the
one thing which is clear.1
Beturning to the Laws of Ine, as the wergeld of the
Wilisc man with five hides was a half-wergeld of
600 sciUings it might be supposed that the ordinary
Wilisc man's would be a half-wergeld of 100 scillings.
But it was not exactly so, for, according to s. 32 above
quoted, the Wilisc man with one hide had a wergeld
of 120 sciUings, one with half a hide 80 sciUings, one
without any land 60 scillings.
In an isolated clause added to s. 23 a somewhat
different statement is made. The weaih gafol-gelda
has the same wergeld as if he had a hide of land,
and the weaih theow the same wergeld as the Wihsc
man without land.

Various Weaih gafol-gelda cxx scill.
classes ot jjg sunu c_ Beowne lx. som-
and Wilisc hwelcne fiftegum. Weales hyd 2
men. twelfum.

(23) A weaih gafol-gelda cxx
scillings, his son c : a theow lx :
some fifty : a wealh's skin twelve.

That the theow of this passage is the ' wealh-theow '
with a wergeld of 60 scillings is clear from sections 54
and 74, the first of which relates to the ' Wilisc wite
theow.'

Wite-feowne monnan Wy
liscne mon sceal bedrifan be twelf
hidum swa feowne to swingum.
Enghscne be feower & frittig
hida.

(54) A Wihsc wite-theowman
shah be fohowed up with twelve
hides like a theow to the scourg
ing ; an English with four and
thirty hides.

1 The only mark of the geo
graphical position of the district
is that in the final clause : ' For
merly the Went-smtas belonged to
the Dun-sffitas, but more properly
they belong to the "West Saxons ;

there they shall give tribute and

2 Translated in the Latin
version by ' corium,' the meaning
probably being that 12 scillings'
would buy off a scourging.

The Dooms of Ine.

405

The wite-theow was a person who had once been free
but from debt or calamity had sunk into thraldom.
The English ' wite-theow ' is dealt with thus in the
Laws of Ine.

Gif wite-feow Englisc-mon
hine forstahe ho hine mon & ne
gylde his hlaforde. Gif hine mon
ofslea ne gylde hine mon his
mssgum gif hie hine on twelf-
monoum ne aliesden.

(24) If a wite theow, an
Englishman, steal himself away.
let him be hanged and nothing
paid to his lord. If any one slay
him let nothing be paid to his
kindred if they have not redeemed
him within twelve months.

His free kindred might ignore him if they liked :
there was no need for them to pay the wergeld of a
kinsman who had forfeited his freedom.
Section 74 relates to the theow-wealh, but this term
would seem to apply to the case of the wealh-wite-
theow}

Gif feow-wealh Engliscne
monnan ofsliho" fonne sceal sef e
hine ah weorpan hine to honda
hlaforde ~J masgum offe lx scill.
gesellan wiS his feore. Gif he
fonne f one ceap nelle fore gesel
lan fonne mot hine se hlaford
gefreogan gielden siffan his
maegas f one wer gif he rnseg-burg
haebbe freo. Gif he naebbe hedan
his fa gefan. Ne f earf se frigea
mid fam feowan maeg-gieldan
buton he him wihe faehoe of-
aceapian ne se feowa mid fy
frigean.

(74) If a theow-wealh slay
an Englishman, then he who
owns him shall dehver him up to
the lord and the kindred or give
60 scillings for his life.
But if he will not give that
sum for him, then must the lord
enfranchise him. Afterwards let
his kindred pay the wer if he
have a free mceg-burh. If he
have not let his foes take heed to
him. The free need not pay ' mseg-
bot ' with the theow unless he be
desirous to buy off from himself
the feud : nor the ' theow ' with
the free.

The
theow- wealh.

1 In the Laws of Henry I.
(lxx. s. 5) the ' theow-wealh ' is
translated ' servus Waliscus,' and

is worth double the ordinary
slave, miless the amount be a
double penalty.

406 Early Anglo-Saxon Custom.
This clause is repeated in the so-called Laws of
Henry I. c. lxx., but the amount named is 40 sciUings
instead of 60 scillings. Sixty scillings is double the
manbot of the twy-hynde man in s. 70 of Ine's Laws,
and it may be the double value of the wealh-theow
to his lord.
V. THE TWELVE-HYNDE AND TWY-HYNDE MEN AND
THEIR HYNDENS OP OATH-HELPERS.
The silence of the Dooms of Ine upon some of the
most important matters relating to ancient custom
is no doubt disappointing, but their position as
almost our only direct evidence of the customs of
The mean- Wessex for the first two or three centuries after the
ing of ...
twelve- conquest of Britain gives to every hint a value.
twy- e anc Some of the clauses are so isolated that if we could
hynde. n0|. approach them w7ith light from other sources we
should lose the right clue to their meaning. It is
only by following the course we have adopted of
working backwards from the known to the unknown
that we can rightly interpret some of the clauses by
reading into them some things not directly mentioned
by them. And yet if we try to understand such a funda
mental matter as the meaning of the division of classes
into tiuelve-hynde and twy-hynde l it is to the Dooms of
Ine that we must go.

1 The usual explanation of j of ' ten ' and to refer to the number
these terms is that they are de- of soldiers of whom the twelve-

rived from the number of shil
lings in the-wergeld. Mr. Earle
in his valuable Handbook to the
Land Charters &c. (p. 1) con
siders ' hynde ' to be an old form

hynde and six-hynde men were
captains. ' The former was a
captain of 120 and the latter of
60.' Neither of these explanations
seems to me to be satisfactory.

The Dooms of Ine. 407

It is in these Dooms that the meaning of the words Connected
twelve-hynde and twy-hynde is most clearly connected system of
with the system of compurgation and the oaths of helpers
the oath-helpers. It is moreover in these Dooms that
at first sight the mystery is made still more mysterious
by the statement of the value of the oaths in so many
hides. The fact of this connection between the value of value of
the oaths and hides was first brought to our notice hides/"
in the Dialogue of Archbishop Egbert apparently as a
matter already weU known and established. And it
was his claim that the oaths of his priests should be
reckoned as oaths of 120 hides which confirmed what,
from the Laws of Ine, was hardly more than doubtful
inference that this was the value of the oath of the
gesithcund or twelve-hynde class.
The Archbishop's mention of it confirmed it, but
left its meaning and origin as obscure as ever. And
yet the whole question of the structure of Saxon
society is so mixed up with the right understanding
¦of the twelve-hynde and twy-hynde division of
classes that unless further light can be let into it a
good deal of what we should like to see clearly must
remain unhappily enveloped in fog.
Archbishop Egbert's substitution of the phrase so Hides
many tributarii or manentes for the ' so many hides ' f^iy
of the Laws of Ine obliges us to regard the hide of holdings-
Ine's Dooms in this connection as equivalent to the
' familia ' of Bede. The Saxon translator of the Latin
text of Bede translated the word familia sometimes
by 'hide ' and sometimes by hiwisc or family. In this
connection it is also worth noting that, although
writing a century later than Egbert and two centuries

408

Early Anglo-Saxon Custom.

The
familia of Bede.

Manentes and tribu
tarii of
Egbert.

after the date of Ine's Laws, the translator of Bede had
not cast off all traces of tribal tradition, for he con
sistently used the word mcegthe as the equivalent of
Bede's 'provincia.' He still thought of tribes and
peoples rather than of districts and provinces. His
ideas in these things ran on tribal rather than on
territorial lines. So to him the hide was still the
family unit, and the greater kindred or tribe, as in
Beowulf, was the ma?gthe. In Beowulf we saw that
some of them conquered others and made them pay
tribute. So they did in Bede's time.
While, then, we are obliged to connect the value
of oaths reckoned as of so many hides with hides
which were family holdings, or, as Egbert caUs
them, manentes and tributarii, the original meaning
of the connection must be sought for in tribal con
ceptions. It seems to be quite clear that in saying that the
twelve-hyndeman's oath was an oath of 120 hides,
and the ceorl's presumably of 20 hides, we have not
yet necessarily struck the real train of thought
underlying the connection between oaths and hides.
Bor it is absurd to think that the twelve-hyndeman
could pretend to the occupation or possession of 120
hides or family holdings, or the ceorl to 20 hides.
They could do no such thing. The ceorl, in later
times at all events, who had the twy-hynde wergeld
was ' the ceorl who sits on gafol land ' — a gafol-gelda
on some one else's land. And to the great-grandson
of the ceorl who had risen to five hides, the con
tinued possession of five hides was sufficient to qualify
him for a sithcund status worth a wergeld of 1200
shillings or 2000 thrymsas.

The Dooms of Ine. 409
The question, therefore, needs closer examination
if we would rightly understand the meaning under
lying the distinction between the twy-hynde and
twelve-hynde social status.
Let us then in the first place try to understand
the meaning of the word hynde which gives to the
distinction between twy-hynde and twelve-hynde
its important significance.
The word separated from its prefix apparently The
occurs in only two places in the Laws. It occurs for J yn-
the first time in an important clause of the Laws of
Ine. And once more it occurs in the Laws of Athel
stan, in the '- Judicia Civitatis Londonise.' A word
which occurs again in Anglo-Saxon laws after an
interval of more than two centuries may and perhaps
must have had a well-known original significance as
a legal term though found nowhere else in Anglo-
Saxon literature.
In Ine s. 54 the word is used twice. The first
part of the clause, which has already been quoted, is
as foUows : —
(54) He who is charged with werfaehthe [man-slaying] and is
willing to deny the slaying on oath, then shall there be in the
hynden one King's oath of xxx hides as well for a gesithcund man
as for a ceorlisc man whichsoever it may be.
In this first mention of the hynden the word must The set
mean the set of oath-helpers supporting their kinsman helpers.
with their oaths, and the clause lays down the rule
that in every such set of oath-helpers in the case of
1 slaying ' there must be a ' King's oath of thirty
hides.' But what is this King's oath of thirty hides
which is to be in the hynden of oath-helpers of both

410 Early Anglo-Saxon Custom.
the twy-hynde and twelve hynde man in case of man-
slaying ?
The 30 In the Compact between Alfred and Guthrum is
ofdthe°ath a clause, already quoted, immediately following the
King's statement of the wergelds of Dane and English, and
the declaration that they were to be ' equaUy dear,'
which seems to be almost a repetition of the clause
in Ine's Laws, but without using the word hynden.
(3) If a King's thane be charged with man-slaying, if he means
to clear hiinself by oath, let him do it with twelve King's thanes,
and if a lesser man than a King's thane be charged, let him clear
himself with eleven of his like and with one King's thane.
We have seen that the King's thane is mentioned
in the Laws of Ine (s. 45), and that his social position
was much higher than that of the ordinary gesithcund-
man. The bot for his burg-bryce was sixty scillings
- — i.e. halfway between that of the ealdorman at
eighty scillings and that of the gesithcundman having
land at thirty-five scillings.
The King's thane's oath seems, then, to be what is
meant by the King's oath of thirty hides in the Laws
of Ine. But the King's thane's oath of thirty hides
being the oath of a class higher than that of the
gesithcundman, how is it that the oath of the latter
could be a 120 hide oath ? — i.e. worth four times as
much as that of his superior, the King's thane.
At first the two statements seem to clash, but on
reflection a spark of light seems to come from the
collision. The King's thane's oath in this case is
only one oath in the hynden of twelve oath-helpers
supporting the twelve-hynde or twy-hynde man.
When a King's thane was himself charged with man-
slaying the later law declares that he must clear

The Dooms of Ine. 411
himself with twelve King's thane's oaths. The full
oath of the whole hynden, himself and his co-swearers,
would therefore be equivalent to an oath of 360 hides
— i.e. worth three times the 120 hide oath of — may
we not now say ? — the twelve oath-helpers forming
the hynden of the gesithcundman.
The King's thane's official position was sufficient The single
to justify the threefold value of his oath and that of the
the several oaths of his hynden. And if the 120 hide £welJe"
J hynaeman
oath of the twelve-hyndeman be the full oath of was of 10
hides.
himself and his hynden of oath-helpers, then his single
oath would be a ten hide oath, which is much more
within reason. The analogy would be complete were
it not for the necessity of including in the hynden of
the gesithcundman a King's thane's oath of thirty
hides ; but this may have been an afterthought. The
mention of it in the law of Ine is in itself presump
tive evidence that it was a new and an additional
requirement beyond what Wessex custom had origi
nally required.1
So far, then, it seems to be pretty clear that the The oath
120 hide oath of the twelve-hyndeman was the twelve- °nd ™^_
fold oath of himself and his hynden of oath-helpers, ^oTm
each of whose single oaths was, like his own, a ten bides.
hide oath.
Adhering, then, to the meaning of hynden as the set

1 This view that the single
oath of the twelve-hyndeman was
reckoned as a 10 hide oath is
confirmed by the translation in
the Latin of the Quadripartitus

debet per lx hidas i. e. per vi
homines abnegare.' And in s. 19
' potest jurare pro lx hidis i. e.pro
hominibus vi.' Schmid remarks
on these passages : ' Hiernach

of Ine's Laws. s. 46. The Anglo- wiirde also jeder Eideshelfer 10
Saxon ' fonne sceal he be lx hyda j Hiden vertreten.'
onsacan,' is translated by ' tunc I

412 Early Anglo-Saxon Custom.
The oath- of oath-helpers, we have next to keep in mind that the
were kins- oath-helpers were naturally kinsmen representing the
slayer's kindredand their responsibility for the wergeld
of the person slain if their kinsman was the slayer,
and by this consideration we are once more thrown
back upon tribal custom.
The twy- -A-11^ when in the Compact between Alfred and
hyndeman Q.uthrum we see the ' ceorl who sits on gafol-land '
and leys- o
ing's want pUt in the same position as the Norse ' leysing ' or
ofkindred. ^ . , ,. , , . -, -, - r
newly made freeman whose kindred was imperfect,
howbeit in course of being widened by each genera
tion, we seem again to be put upon the scent that
the twy-hynde condition of the Saxon ceorl may
also originally have had something to do with his im
perfect kindred.
When further, in the remarkable fragment aheady
quoted, we see the Saxon ceorl himself rising in the
social scale, getting land ' to the King's utware,'
having a ' coat of mail, helmet, and over-gilded sword '
and doing direct service to the King, until at last,
his son's son having had that land in succession,
the great-grandchildren become of sithcund kin with
twelve-hynde wergelds, the scent seems to lie aU
the more strongly in the direction of the tribal rules
of kindred. For it is as though we had watched
the process of the growth of kindred in this case
till the sithcund condition was reached, and the fuU
hynden had been produced, thus raising the twy
hynde into a twelve-hynde man.
The leysing, we learned from the Norse laws, being
a newly made freedman, had at first no freeborn kin
from whom he could inherit or who could inherit
from him. He had no one of his kin to swear for

The Dooms of Ine. 413
him or to fight for him till he had sons and grand
sons. For three generations the descendants were
leysings still. And though during that time kinsmen
enough may have grown up around them to swear for
them yet still their oaths may well have been reckoned
of lower value than those of the hauld, each of whose
oath-helpers had a fuU kindred behind him to support
him. It took another three generations to put the
leysing in this position.
There may, then, perhaps be involved in this Thefuii
matter of imperfect and perfect kindred a principle of man with
tribal custom orginally underlying the terms twelve- ^pers
hynde and twy-hynde. The oath of full value under °? l^}
tribal usage would be the oath of a man with a tweive-
full kindred, i.e. with twelve hyndens, each of full yn
kindred, behind him. Only with a full kindred to
support him was his protection complete, because
without it he could not secure a full oath of twelve
sufficiently influential and powerful oath-helpers. If
he could claim from his kindred such an oath, then he
may well have been considered properly a twelve-
hyndeman, because such an oath meant practically
that he had the support and protection of twelve
hyndens of kinsmen in case of need.
This might at first sight seem an unnecessarily
large requirement if the oath were regarded only as
clearing a man from the charge of man-slaying. But
going back to tribal usage it seems no longer too
large when the alternative is considered. The
alternative was the ordeal and, on failure of the test
of innocence, the feud or the payment of a wergeld
of, as we have seen, normally one hundred head of
cattle. In either case the slayer was powerless if

414 Early Anglo-Saxon Custom.
alone. He was powerful only in having a full kindred
behind him bound by ties of kinship and tribal usage
first to swear for him instead of his being put to the
ordeal, and secondly to fight for him or to assist him
in finding the hundred head of cattle required to buy
off the feud, according to the proverb ' Buy off the
spear or bear it.' In either case the completeness of
his kindred was the measure of the power of protec
tion behind him.
The oath The twy-hyndeman considered as the leysing or
ceorl6 freedman would not be in this strong position. His
worth social status, resulting from his imperfect kindred,
only one
sixth of must be a low one. If he slew a twelve-hyndeman,
the from the point of view of the feud he would be
hyndeman helpless. The kindred of the twelve-hyndeman slain
and thus j™ j^ couid not be satisfied merely by the slaughter
only twy- J J •> °
hynde. of an inferior. Tribal custom of the Continental
Saxons allowed vengeance for homicide by a thraU
to be taken upon seven thralls. Under Mercian
usage, as we have seen, it had been settled that the
oath of the ceorl was to be taken as worth one sixth
of that of the twelve-hyndeman, because the life of
six ceorls was held to be equivalent in the matter of
vengeance to that of one twelve-hyndeman. And
thus it may be that, in the case of man-slaying, his
oath and that of his oath-helpers, all of inferior value,
came, under Anglo-Saxon custom, to be reckoned in
comparison with that of the man of fuU kindred as
worth only ' two hyndens ' as against his twelve.
In the other passage in which the word ' hynden '
occurs it has not so distinctly the meaning of ' oath-
helpers.' It is not used in relation to homicide or

The Dooms of Ine. 415
wergelds, but still its use and its meaning are in
structive. The use of the word in the ' Judicia Civitatis The
Lundonise ' 1 is in connection with the organisation of nfen^f*
' frith-gegildas ' for the prevention and punishment *;thoity
of theft. These ' frith-gegildas ' were groups or gegildas.
' hyndens ' with a common purse. And contributions
were to be made for the common benefit. In the
eighth clause it was enacted that the hynden-men
should be collected every month, each twelve to a
common meal. ' And if it should then happen that
any kin be so strong and so great within land or
without land whether xii-hynde or twy-hynde that
they refuse us our right and stand up in defence of a
thief, that we all of us ride thereto with the reeve
within whose " manung " it may be.'
These hyndens were not directly groups of
kinsmen and oath-helpers, but they were artificial
groups formed and bound by a pledge for mutual
protection, and the use of the word ' hynden ' in this
sense is significant. There were hyndens of oath-
helpers under tribal custom, and now in the city
hyndens of frith-gegildas were formed for mutual
defence against powerful kindreds outside their city
who were in the habit of protecting thieves from justice.
This was the way apparently that a substitute was
found in the towns for the absent kindreds. And as
time went on these artificial hyndens of gegildas or
congildones no doubt in some measure took the place
of the hyndens of kinsmen in cases of homicide as
well as in cases of theft.

1 Schmid, p. 157 ; Thorpe, p. 97.

416 Early Anglo-Saxon Custom.
Wealth Naturally in the course of time the possession of
ness of property and social status would graduaUy take the
oftenrecon- Place 0I" the completeness of kindred, and the two
current, elements in status would easily be associated together
in common estimation. The value of a man's oath
would depend more and more on the number of hides
of land he was reckoned to possess, or for which he
was responsible to the ' King's utware.'
If we may follow Schmid's translation of ' utware '
as ' Heerbann ' and picture to ourselves the ceorl
who had risen to the social position of a man with a
kindred and having five hides to the King's gafol,
with his coat of mail and helmet and over-gilded sword
coming up at the call of the King to the fyrd with
so many followers, whether kinsmen or tenants, from
the five hides under his charge and so becoming
' gesithcund ' in regard to the King's service, then
there would be force in the further clause which
declares that, although he had acquired a kindred
and a coat of mail and helmet and over-gilded sword,
yet if he have not that land, he is still but a ceorl.
The power and strength and status of a person
would still depend upon the combination of the two
elements, and both would have to be reckoned with.
A passage has already been quoted in which the
possibility is admitted of a kindred becoming so
powerful — magna et fortis — as to defy the King's
law and defend the thief.1 There is another passage
relating to breaches of the peace in Kent in which
the two sources of this power of defiance are men
tioned together. The dangerous person may either

1 Judicia Civitatis Lundonia', c. 8, s. 2 ; Ath. L. vi.

The Dooms of Ine. 417
be so rich or be of so great a kindred that he could
not be punished — ' adeo dives vel tantas parentelae ut
castigari non possit.' 1
VI. THE GESITHCUND AND CEORLISC CLASSES IN THEIR
CONNECTION WITH LAND.
Bursuing the question of division of classes men
tioned in the Dooms of Ine we turn now to the
consideration of the most prominent distinction which
runs through the clauses of the Dooms, viz. that of
gesithcund and ceorlisc.
Boughly speaking, the two distinctions may have
been gradually coming more and more to mean much
the same thing. As a rule no doubt in King Ine's
time ceorlisc men were twy-hynde and gesithcund
men twelve-hynde.
The same class which, regarded from the point of The unit
view of the wergeld, possessed completeness of ofiand.
kindred and the twelve-hynde oath, when looked at
from another point of view was gesithcund, i.e. more
or less directly in the service of the King and belong
ing to the official and landed class. So that the
value of the oath of both twelve-hynde and gesithcund
men may have become easily associated with a
territorial unit of ten hides of land.
Now, the fact of the connection of the value of the
oath with ten hides of land is pretty good proof that
for practical purposes and in common usage the
holding of ten hides was looked upon as in some
way or other a typical unit of holding of the

1 Decretum Episcoporum et aUorum sapientum de Kancia de
pace observanda. Ath. L. iii.
E E

418 Early Anglo-Saxon Custom.
gesithcund or landed class. There is nothing new in
this suggestion, but its lack of novelty does not
detract from its value. And an examination from a
tribal point of view of the isolated passages in the
Dooms of Ine relating to this typical holding of ten
hides may possibly throw further and useful hght
upon the position of the gesithcund class.
While we speak of the gesithcund class as
almost equivalent to the landed class it is obvious
that it would be wrong to consider every gesithcund
man as a landowner. Attention has already been
caUed to the following clause :
(51) If a gesithcundman owning land neglect the fyrd, let him
pay 120s. and forfeit his land. One not owning land 60s., a
ceorlisc man 30s. as fyrd-wite.
The gesithcundman not possessing land may either
be one who has forfeited his land or a cadet of the
class not having yet attained to the position of
landholding and yet being gesithcund by birth.
Nor would -it do to let modern notions of land-
ownership intrude themselves so far into the question
as to make us regard the gesithcund and landed
class as a class of land-owners in the modern sense.
If the typical holding of ten hides be that of the
gesithcundman, we may have to regard him rather
as a gesith of the King put into possession of the ten
hides by way of stewardship than as anything hke
the absolute owner of them.
Ten hides The typical holding of ten hides may perhaps be
for food usefully regarded, from a fiscal point of view, as a
thelhief- unit for PurPoses of revenue, at a time when that
tain or revenue under tribal custom consisted chiefly of food
rents paid in kind for the King's or the chieftain's use.

The Dooms of Ine. 419
Clause 70 of the Dooms of Ine fixes in detail the
food rent of ' ten hides ' ' to fostre ' or ' on feorm.'
If the unit of ten hides were not the customary
unit for these food rents on the Boyal domains why
should the details of the food rent of ten hides have
been made the subject of an isolated clause like
this? Again, if we turn to the grants made by King Ine to Land
the monasteries, they become intelligible if the system j^io s
of management of the Boyal domains in units and hldes-
multiples of ten hides may be understood to underlie
them. When Ine grants to Aldhelm, then Abbot of
Malmesbury, ' 45 cassati ' in the county of Wilts, the
grant is found to consist of groups of ' manentes ' in
four different places. And the groups consist of 5,
20, 10, and 10. 1 When Ine makes a grant to Abbot
Bernald of land in Somersetshire it consists of three
groups of 20, 20, and 20 cassati or manentes from three
different estates.2 And when he makes a similar
grant to Glastonbury it consists of 10, 10, 20, 20 hides
and one hide in five different places in Somersetshire.3
So also when Bede mentions the donations by King
Oswy to the Abbess Hilda of 12 possessiuncula
terrarum he adds that six were in the province of
Deira and six in Bernicia and that each of them
consisted of 10 familia?, so that in aU there were 120.4
Now it would seem that as ealdormen were set
over shires so gesithcund men may have been set
over smaUer units of 10 hides or multiples of 10
hides, holding them as lsenland, not only for services

1 Birch, No. 102, a.d. 701. I 3 lb. 142, a.d. 725.
8 Lb. 113, a.d. 705. I 4 Hist. Eccl. hb. iii. c. 24.

420

Early Anglo-Saxon Custom.

Officialpositionof the
gesithcundman.

rendered, but also with some kind of subordinate
official or even judicial functions.
Schmid long ago pointed out that the translator
of Bede in six passages translated the Latin comes by
' gesith ' or ' gesithcundman.' * This seems to imply
that his position was in some sense an official one,
subordinate indeed to the ealdorman's, as we may also
learn from the translator of Bede. For whUe he
translates the ' villa comitis ' of Bede as the ' gesith' s
hus ' he translates the ' villa regis ' as the residence of
the king's ealdor (' botl cyninges ealdor ').2
We found in s. 45 of King Lie's Laws above quoted
that the gesithcundman's burg-bryce was thirty-five
scillings while the ealdorman's was eighty sciUings.
Still, though the lowest official in the scale, it was
something that he should be named with the King, the
ealdorman, and the King's thane as having a burg-
bryce according to which he was to make legal
denial (ansacan).
The omission from this clause as to burg-bryce of
classes below him seems to mark that while even the
ceorlisc man — i.e. even the gafol-gelda or gebur — was
responsible for the peace within his ' flet ' and received
a fight-wite when it was broken by fighting in it, the
gesithcundman belonged to the class with some sort of
extra jurisdiction beyond that which attached to every
man whose homestead was by long tribal custom a
sacred precinct.
And there is a clause in the Laws of Ine which
seems to refer to the something like judicial duties

1 Glossary, sub voce ' Gesith,'
and see Bede, iii. 14 and 22,

iv. 4 and 10, and v. 4 and 5.
J Bede, ii. c ix.

The Dooms of Ine.

421

of the gesithcundman, for it shows that neglect of His judi-
them causing a suit which he ought to have settled to
be carried to a higher court — before the ealdorman or
the King — deprived him of his right to share in the
' wite-rseden,' whatever they were, appertaining to the
suit.

magis terial
duties.

Gif gesiocund mon f ingaS wio"
cyning offe wio" kyninges ealdor"
mannan for his inhiwan offe wiS
his hlaford for f eowe offe for frige
nah he f aer nane witeraedenne se
gesiS forf on he him nolde aer yfles
gestieran aet ham.

(50) If a gesithcundman has
a suit with the King or with the
King's ealdorman for his house
hold or with his lord for bond or
for free ; he (the gesith) shah not
there have any ' witeraeden ' be
cause he would not correct him
before of his evil deeds at home.

That he had special duties to discharge in connec
tion with the ' fyrd ' was shown not only by one of
the qualifications of the gesithcund status being the
possession of a coat of mail, helmet, and over-gilded
sword, but also by the fyrd-wite of 120 scillings aud
the loss of his land if he neglected the fyrd.
That he was put into his landed position under His duty
conditions to secure the management of the land for taxing's
the provision of the King's gafol is shown by the ^"Ind"1
following clauses, which in regard to one important
particular at least point out what was expected of
him and further suggest that there was reason to fear
that sometimes he might be inclined to desert his
post without having performed the conditions upon
which his land was held.

Be ges&icwndes monnes fare.
Gif gesiocund man fare fonne
mot he habban his gerefan mid
him -] his smic5 ~) his cild-festran.

If a gesithcund leaves [the land\.
(63) If a gesithcundman leaves,
then may he have with him his
reeve [?] and smith and his foster-
nurse. '

422

Early Anglo-Saxon Custom.

He must
settletenantson the
land.

Sefe haefS xx hida se sceal
taecnan xii hida gesettes landes
fonne he faran wille.
Sefe haefo' x hida se sceal
taecnan vi hida gesettes landes.
Sefe haebbe freo hida tascne
oores healfes.

(64) He who has 20 hides, he-
shah show 12 hides of geset
land if he want to leave.
(65) He who has 10 hides shah
show 6 hides of geset land,
(66) If he have three hides let
him show one and a half.

These clauses suggest very clearly that the gesith
cundman had been entrusted with the ten hides or
twenty hides, or sometimes a smaUer number, under
the special obligation to provide the food rent by
settling tenants upon the land.
Method of Let us pass, then, to what evidence the Dooms of
Ine afford as to the customary method of settling.

settlinggafol-rebursaond'tenantsontheland.yardlands.

The very next sections to those just quoted are as
follows : —

Be gyrde londes.
Gif mon gef ingaS gyrde landes
offe maere to rasde-gafole ~j geereS,
gif se hlaford him wile f land
arsaran to weorce 1 to gafole, ne
f earf he him onf on gif he him nan
botl ne seltS. ~) f olie fara 83cra.
Gif mon gesiocundne monnan
adrife, fordrife f y bot le, nces pcere
setene.

Of a yardland.
(67) If a man agrees for a
yardland or more to gafol and
ploughs it, if the lord wants to
raise the land to work and to gafol,
he need not take it upon him if he
[the lord] does not give him a botl,
and let him give up (?) the acres.
(68) If a man drive off a
gesithcundman, let him be driven
from the botl, not the setene.

Working from the known to the unknown, in a
former volume we found that under the open-field
system of husbandry the hide at the time of the
Domesday survey and earlier was generaUy held to
contain four virgates or yardlands, and that so far
as arable land was concerned each yardland was a
bundle, so to speak, of about thirty scattered strips

The Dooms of Ine. 423
or acres. Tracing the yardland further back, the The yard-
interesting point was gained from the tenth-century Jn° u^
document known as the ' Bectitudines &c .,' that ' in h,ol^ing
' of the
some regions ' the custom in aUotting a yardland to gebur,
f 11 j , 7 , • , • -ii- witha
a tenant called a gebur was to give him with his pair of
yardland to land-setene seven acres already sown and
a pair of oxen, and certain other things theoretically
by way of loan, so that on the gebur's death everything
returned to the lord, though in practice the holding
and land-setene were no doubt continued to his suc
cessor on payment of a ' relief.' And this system of
settling gafol-geldas and geburs, or whatever such
tenants might be locaUy caUed, on yardlands seems to
be that aUuded to in the Dooms of Ine. The clauses
incidentaUy referring to gafol-geldas, geburs, and yard-
lands thus become intelligible and important in the
light of the later evidence. This I endeavoured to
show in a former volume.1
Now, this system of settling tenants on yardlands The hide
by aUotting to each a pair of oxen, so that four of them yardlands
should be able to combine in forming the common fgri°ul-
° tural.
plough-team of the hide, obviously belongs to a time
when agriculture had become sufficiently important
for the unit of occupation and so of gafol-paying and
services to be generally agricultural rather than pas
toral. But while the hide thus seems to have been
connected in the Dooms of Ine mainly with arable
farming, it does not foUow that it always had been so
everywhere. The word ' hide ' may have originally
been apphed to a holding devoted more to the
grazing of cattle than the growing of corn.

English Village Community, chap. v.

424

Early Anglo-Saxon Custom.

In pas
toral districtsco-arationof the
waste.

The remarkable document which has been called
J 'The Tribal Hidage,' to the meaning and date of which
Mr. W. J. Corbett l has opened our eyes, shows that
forty or fifty years before the date of the Dooms of
Ine the whole of England then subject to the Anglo-
Saxons was, as we should say, rated in hides accord
ing to its tribes or maegthes, possibly for the fiscal
purposes of the Bretwaldaship. And it would
seem likely that under the common designation of
hides pastoral as weU as agricultural units for food
rents must have been included. This seems to be
indicated by the fact that the hides and virgates of
the pastoral districts of West Wales in the Exon
Domesday book are many times greater than those
of other parts of England, and vary very much in
area. In the pastoral or grazing districts recently con
quered from West Wales early tribal usage would be
very likely to survive. And there may weU have
been some continuity in the methods of tribal agri
culture. Judging from what we know from the
Cymric Codes, there might not yet be permanent
division of the fields into strips and virgates but
rather co-aration of such portions of the waste
each year as suited the requirements of the tribes
men. The open-field system of agriculture was in its
main principles and chief methods common to German
and Celtic tribes. But we are told that the Germans
knew nothing of co-operative ploughing and the

1 See Transactions of the Boyal Historical Society. New Series,
vol. xiv.

The Dooms of Ine. 425
team of eight oxen on which the agricultural hidage
of England was so clearly based. For the team of Tne team
• i i m • /n -i ii of8 oxen
eight oxen we must go to the Cymric Codes and the said not
practice in the Isle of Man and Scotland. It was German.
common to these Celtic regions, even to its details —
the yoke of four oxen abreast and the driver walking
backwards in front of the team.1 In such a matter
as the method of ploughing there may weU have been
continuity. We seem to see in the Laws of Ine the process
going on of transition from the tribal form of the
open-field system — the co-aration of the waste — to
the more fixed forms of settled and permanent agri
culture. Thus, without pressing analogies too far, there
may be a root of tribal custom discernible even in the
system of settling geburs on yardlands. Something
very much like it was followed on the Continent
under Boman usage. But the case of the veteran to
whom a pair of oxen with seed of two kinds was
given as his outfit only partly resembled the case of
the gebur. In the case of the gebur the outfit of The aiiot-
oxen remained in theory the property of the lord, stock and
and returned to him on the death of the tenant. gteadby
This was the essential point which created the {^ ^J0
semi-servile tenancy. With the homestead went the was the
'setene' or outfit and the corresponding obligation the
not only of gafol but also of week-work, and out of tenan°y-
the peculiar relation so established may have grown
up in West Wales, as in Wales itself and Ireland,
very easily the doctrine that after its continuance

1 English Village Community, p. 117 et seq.

426 Early Anglo-Saxon Custom.
for four generations the tenant became adscriptus
gleba?. The allotment of stock by the Irish chieftain
formed, as we have seen, in a cattle-breeding rather
than an agricultural community the traditional tie
between himself and his tenants, whether tribesmen
or strangers. The Cymric chieftain of a kindred
followed very nearly the same traditional practice
when he gave to the young tribesman on his attain
ing the age of fourteen his da (or aUotment of
cattle) for his maintenance, thereby estabhshing
the relation of ' man and kin ' between him and the
chief. The same tribal principles were, moreover, applied
to strangers both in Ireland and Wales. The Irish
' fuidhir ' thus settled on the chieftain's land became,
as we have seen, after four generations adscriptus
gleba?, and so did the Aillt or Alltud settled on the
Cymric chieftain's land. And the same number of
generations attached the nativus to the land under
early Scotch law.
Now, if under tribal usage this was so, it need not
be surprising that in the newly conquered districts of
West Wales or more generally in Wessex at the time
of King Ine, when the extension of agriculture was
an immediate necessity, something like the same
traditional system should continue or come again
naturally into use, producing something hke the same
kind of dependence of one class upon the other.
This It is necessary to point out that this method of
of settle- settling tenants on yardlands with an outfit of a pair
ment very 0f oxen &c was more or less general, because doubts
general. °
have been recently thrown upon it. Its prevalence

The Dooms of Ine. 427
as a custom does not rest entirely on the evidence of
the ' Bectitudines ' but on several incidental mentions
of it in various and distant quarters.
For instance, in the will of a reeve named Abba Kent.
of Kent (about a.d. 833) j is the gift of a 'half
swulung ' — i.e. what elsewhere would have been
described as a half hide — and with that land were to
go four oxen, two cows, and fifty sheep, that is two
oxen and one cow and twenty-five sheep to each gioc
or yardland. And again, the Inquisition of Glastonbury (a.d. Giaston
1189) 2 describes the holder of a j^ardland almost in my'
the same terms as those used in the ' Bectitudines '
in the description of the gebur. He is said to hold
a yardland for 32<£ (probably Id. per acre), and
every Monday he must plough a half-acre and harrow
it, and he works every day in the week but on
Sunday. He has from his lord one heifer (averum)
and two oxen and one cow and seven acres of corn
sown and three acres of oats (to start with) —
ten acres in aU sown — and six sheep and one ram.
King Ine made grants of land, as we have seen,
to Glastonbury, and it is interesting to find the
custom of aUowing two oxen, one cow, and six sheep
to the yardland as described in the ' Bectitudines '
stiU going on in West Wales five hundred years after
Ine's time on the estates of the Abbey.
Take again the charter MLXXIX. mentioned by winches-
Kemble (i. p. 216). This charter shows that the er-
Bishop of Winchester (a.d. 902) had leased fifteen hides
of land to a relative of the Bishop, requiring that he
1 Birch, 412. 2 Roxburgh Club, p. 138.

428 Early Anglo-Saxon Custom.
must settle there (inberthan) 1 men who would be
fixed (hamettan) to the place. He himself had
' hamet ' Lufe and her three bairns, and Luhan and
his six bairns, and these must remain on the land
whoever might hold it. There were also three
witetheows burb&rde and three more theowbs&rde
belonging to the Bishop, with their descendants
(and hire team). At this date the settling of new
tenants (may we not say ?) some of them as geburs
and some as theows was stiU going on in Wessex
a.d. 902.
It is quite true that the holders of these yardlands
are not everywhere always described as geburs. But
we are dealing with the thing, not the name. The
word gebur, however, was of much wider use than
merely in one or two localities.
Tydden- It is not only in the ' Bectitudines ' that the
gebur and his services are mentioned. On the
Tyddenham Manor of King Edwy on the ' geset-
land ' there were ' geburs ' with yardlands (gyrda-
gafoUandes) — as mentioned in the former volume
(p. 150). And other examples may be quoted.
shaftes- In the wiU of Wynfled 2 there is mention of lands
at Shaftesbury and ' the geburs that on those gafol-
lands sit ' (para gebura di on pam gafollandes sittaiS).
And as incidental evidence that the geburs became
in course of time adscripti gleba?, it is worth while to
remember that early in the eleventh century the
monks of Ely in connection with their Manor of
Hatfield kept record of the children of the geburs on

bury.

1 Compare cerdian, to inhabit ; '¦ • About a.d. 995. Cod. Dip.
and so owrbrerde and theowhseiAe, I 1290.
as below.

The Dooms of Ine. 429
their estate wTho had married with others of neigh- Hatfield.
bouring manors, so that they might not lose sight
of them and their rights over them. And the
importance with which their rights were regarded
is emphasised by the fact that the record was
kept upon the back of an ancient copy of the
Gospels belonging presumably to the altar of St.
Etheldreda.1 Now, if such in part was the relation between the
gesithcundman and the tenants of the yardlands of
his ' geset-land ' arising from the allotment or loan
of stock, may not something of the same kind lie at
the root of the relation between the gesithcundman
himself and the King ? Lord as he may have been
over his ceorlisc gafol-geldas, was not the gesith
cundman himself a servant of the King looking after
the King's gafol, a kind of middleman, tied to his
post with the ealdorman above him in the hierarchy
of Boyal service, liable to lose his land if he neglected
his duty ?
It is an interesting question how far the ceorlisc How far
class were adscripti gleba? under the Laws of Ine, was ad-
but when we try to find this out we discover that gc{^us
both classes seem to be under some kind of restraint
as to ' going away ' (fcere). If a gesithcundman
' fare ' we have seen under what restrictions it must
be. There is another clause which deals with the
case of persons who shall ' fare ' without leave from
their lords.
Gif hwa fare unaliefed fram I (s. 39) If any one go from his
his hlaforde offe on oore scire I lord without leave or steal him-

1 Cod. Dip. mcccliv. See also Liber Eliensis, p. 120.

430

Early Anglo-Saxon Custom.

hine bestele ~] hine mon geahsige
fare f 83r he aer waes ] gesehe his
hlaforde lx scill.

self away into another shire and
he be discovered, let him go where
he was before and pay to his lord
60 scihings.

Judged in the light of later laws to the same
or nearly similar effect, this clause must probably be
regarded rather as early evidence of the relation
between lord and man established generally for the
maintenance of the pubhc peace, than as bearing
directly upon the question of the attachment of the
smaUer class of tenants to the soil.1 And yet if the
relation of the ordinary freeman to, let us say, the
ealdorman of the shire was such that he might not
move into another shire without leave, and untU it
was ascertained whether his action was bona fide, or
perhaps with the object to escape from debt or
vengeance for a wrong committed, the restriction
would be likely to be stiU stronger when a tenant
was under fixed obhgations to his lord, or had, by
taking a yardland and homestead, settled on his
lord's land and accepted stock under conditions of
gafol and week- work regulated by general usage.
The idea of freedom as a kind of masterful inde
pendence of the individual was not one inherited
from tribal modes of thought, nor hkely to be fostered
by the circumstances of the times which foUowed
upon the Anglo-Saxon conquest of Britain. When
this fact is fuUy recognised, the gulf between the
gesithcund and ceorlisc classes does not seem so deep,
after all, as it would be if, instead of approaching the
question from a tribal point of view, we were looking
for aUodial landowners on the one hand and expect-

Alfred, s. 37.

The Dooms of Ine. 431
ing the ceorl to be a member of a village community
of independent peasant proprietors on the other
hand. But we are not doing this, and, returning to the The king's
gesithcundman, perhaps we have after all taken 0°0gafroin s
for granted quite enough that the general environ- how fo
ment in Wessex was agricultural rather than pastoral.
Even as regards King Ine himself, there may have
been a good deal of the tribal chieftain still left
in his relations to his gesithcund followers and
officials. We have spoken of his tribal food rents ;
but how did he gather them ?
No doubt the King's gafol may partly have been
paid in money. But so far as it was paid in kind
it must have been carried by his tenants to his
Winchester palace, or one of his other manors,
according to the system prevalent at the time, The flrma
foUowed for centuries after in West Wales, viz. the noctis.
system of the ' night's entertainment ' (firma unius
noctis) — a system followed by tribal chieftains and
their Boyal successors in Scandinavia as well as in
Britain. When the Domesday survey was made of what
was once West Wales there was found still existing,
especially in Dorsetshire, the survival of a very
practical arrangement of Boyal food rents which may
have been in use in King Ine's time and date back
possibly before the West Saxon conquests.
Some portions of the ' terra Begis ' scattered about
the county of Dorset are grouped in the survey so
that each group might supply the firma unius noctis,
the money equivalent of which is stated to be 10il.,
i.e. 21. per night's entertainment for one night each

432 Early Anglo-Saxon Custom.
week in the year. This mode of providing the firma
unius noctis is illustrated by the legend which repre
sents King Ine himself and his queen as moving from
manor to manor for each night's entertainment, their
moveable palace of poles and curtains being carried
before them from place to place upon sumpter
mules. Now, if we might regard the gesithcundman as
one of a class to whom ten hides or twenty hides had
been aUotted by King Ine on a system providing in
this practical way inter alia for the night's entertain
ments, it would be natural that the food rent of the
unit of ten hides should be fixed. And further, it
would be natural that if the gesithcundman should
wish to throw up his post and desert the land en
trusted to his management he should be restricted,
as we have seen, by conditions intended to secure
that the provision for the King's entertainment or
gafol in lieu of it should not materiaUy suffer.
We have seen that as the ealdorman was to lose
his ' shire ' if he let go a thief, so the gesithcundman
was to pay a fyrdwite, and to lose his land if he
neglected the fyrd. It was possible, then, that he
The might have to be evicted. And a clause in the
cundman Dooms of Ine has aheady been quoted which seems
evicte'd*63 to refer to tne eviction of a gesithcundman.

Be gesiScundes monnes draefe
of londe. Gif mon gesiocundne monnan
adrife, fordrife fy botle naes f sere

(68) If a gesithcundman be
driven off land.
If one drive off a gesithcund
man, let him be driven forth from

setene. j the homestead (botl), not the
setene.
If he was evicted he was to be driven from the botl

The Dooms of Ine. 433
or homestead, not the setene. What can the setene
have been ?
The land granted or intrusted to the gesithcund
man for the performance of corresponding duties is
not likely to have been mere waste. Bart of it
might surely already be ' geset land,' let to tenants
of yardlands. On the rest of it still held in demesne
there would probably be some herds of cattle. In
these early days the cattle and corn on the land
were far more valuable than the mere land itself.
If, therefore, a fixed food rent was payable to the
King, may it not be inferred that sometimes the
typical holding of ten hides included the stock let
with it, just as, according to the 'Bectitudines,' the
yardland did? Following strictly the analogy, the
original stock on the land and in the hands of the
tenants would be the ' setene ' of the gesithcundman,
theoretically, like the land itself, belonging, not to
him, but to his lord ? It might have been some- were the
i • i • i i stock and
times so. But at the same time there might be crops
other cases in which the possession of cattle may hiTown?
have led to the tenure. The ceorl or the weaih who
had risen to having five hides may have brought
the cattle or setene with him. And to evict him
from his own cattle and crops as well as from the botl
might be unjust.
The text as it stands seems to mean that the
gesithcundman is not to be evicted from the setene,
and the clause seems to be intended to protect his
rights and to prevent his being evicted from his own
stock and crops on the land. The clause is not
clear, but it adds to the sense that in the case of
the gesithcundman we are not dealing with a land-
F F

434 Early Anglo-Saxon Custom.
owner who can do what he likes with his own, any
more than in the case of the ceorlisc gafol-geldas we
are dealing with a class of peasant proprietors.
Position Difficult as it may be to come to a clear under-
ciafses1™0 standing of some of these isolated passages in the
in ine's Dooms 0f jj^ they may at least have saved us from
the pitfall of a fatal anachronism. Their difficulties,
forcing us to think, may in some degree have helped
us to realise the point of view from which the two
classes— gesithcund and ceorlisc — were regarded in
early Wessex legislation.
Throughout Wessex, speaking generaUy, they
seem to have been regarded as the two prominent
classes in practical agricultural life. The general
The facts of everyday observation marked off the gesith
cund class cundman as belonging to the ruhng class, holding
daVs^1 land direct from the King as the King's gesith>
while the ceorlisc man, speaking generaUy, in
his relation to land was the gafol-gelda or gebur
sometimes probably holding his yardland on the
King's demesne, but mostly perhaps and more and
The more often as the tenant of the gesithcundman.
ceorlisc class the This, it would seem, had become so general that in
ciasTpay- King Alfred's day and perhaps even in King Ine's,
tn§thefo1 ignoring the exceptional classes between the gesith-
landed cund and the other class, there was no absurdity in
King Alfred's claiming that equaUy dear with the
Danish lysing the ' ceorl who sits on gafol land '
should have a twy-hynde wergeld.
The division into gesithcund and ceorlisc classes
was doubtless a somewhat rough and wide generali
sation. There were, we know, men without land who
belonged to the gesithcund class, and ceorls who

The Dooms of Ine. 435
were not tenants of yardlands. And even among
the tenants of yardlands some paid gafol only and
others both gafol and week-work. But for our pur
pose the fact to be noted is that the generalisa
tion was sufficiently near the truth for it to be
made. We must not infer that these two classes included
strictly the whole population. Judging from Conti
nental evidence, Wessex must have been very
exceptional indeed if there were not everywhere
numerous theows or thralls. From this class Anglo-
Saxon wills and other documents show that there Tne ,
was a constant stream of freedmen or theows who by class
emancipation were aUowed to creep up into the delude
ceorlisc class, partly as the result of Christian j^J
impulse, and partly probably from the lack of tenants freedmen.
to occupy the yardlands left vacant by the desolation
caused by constant wars.
Thus while, broadly speaking, the gesithcund
and the ceorlisc classes may have corresponded to
the twelve-hynde and twy-hynde classes, they were not
absolutely identical. The two lines of distinction
had not the same origin and did not run absolutely
parallel. But they may well have worked in the
same direction. The original distinction founded
upon the possession or absence of the perfect kindred
and ' hyndens of oath-helpers ' Was rooted in tribal
instincts and never wholly extinguished throughout
Anglo-Saxon history. The gesithcund class, most
perfect in their kindred and nearest in their relation
to the King, influenced perhaps by traditions of
Boman land management, naturally grew up into
a twelve-hynde and landed class, while the ceorlisc
F F 2

436

Early Anglo-Saxon Custom.

The gulf
between the two

existed
in King
Alfred's time.

class, recruited from outside and from below, just as
naturally became their tenants.
Thus in England, as elsewhere, we may easily be
lieve that the gulf between classes resulting from tribal
instincts and confirmed by difference in wergelds was
hardened and widened by the conditions of landholding
in the conquered country, which tended to raise the
one class more and more into manorial lords and de
press the other into more or less servile tenants. The
Compact between Alfred and Guthrum affords the
strongest evidence that already in King Alfred's time
the process was far enough advanced for a pretty
hard line to be drawn between them.

Continen tal wer
gelds of
200 and
160 gold
solidi for
the full
freeman.

VII. COMPARISON OF WESSEX AND MERCIAN WERGELDS
WITH THOSE OF CONTINENTAL TRIBES.
Before passing from the Wessex to the Kentish
laws it may be well to mark the position to which
the evidence hitherto examined has brought us with
regard to the amount of the wergelds.
We have had again and again to come back to
the question of the status of the twelve-hynde and
twy-hynde classes as shown by' their wergelds. By
the Compact between King Alfred and Guthrum the
English wergelds were brought into hne with Norse
and other Continental wergelds. The statement of the
higher wergeld in gold made possible a comparison
of the Anglo-Saxon with Continental wergelds.
The result of the inquiry into the Continental
wergelds of the full freeman was that they seemed to
fall very distinctly into two classes — the Frankish
and Norse wergeld of 200 gold solidi, on the one

The Dooms of Ine. 437
hand, and the Frisian, Saxon, Alamannic, Bavarian,
and possibly Burgundian wergeld of 160 gold solidi
on the other hand.
The ratio between these two wergelds is as 5 : 4.
Now, this is exactly the ratio between the two
twelve-hynde wergelds of the Anglo-Saxon laws, -i.e.
of Wessex and of Mercia. Both were of 1200 scil
lings, but the Wessex scilling was of five pence and
the Mercian of four pence.
Finding twelve-hynde and twy-hynde wergelds in The
the Laws of Ine, we seem to be bound to regard the and
distinctions between the two classes as going back to ^geids
a time two centuries at least before the inroads of anoient-
the Northmen.
The position of the Dooms of Ine as they have
come down to us annexed to the Laws of King Alfred
might possibly have raised a doubt as to whether the
incidental mention of the wergelds might not have
been inserted in the text by the scribes of King
Alfred. But if the Mercian wergelds were of ancient
tradition, independently of the Wessex evidence, the
statement of the Wessex wergelds in the Dooms of
Ine need not be doubted. At the same time, the
amount of the Wessex wergeld is confirmed by the
wergeld of the secular thane in the Northumbrian
statement, for 2000 thrymsas are equal to 6000 pence,
and thus the wergeld of the thane accords with the
Wessex twelve-hyndeman's wergeld. And as this
statement seems to have been rescued from times
anterior to the Northmen's invasion, it is so far inde
pendent evidence. In the same document the ceorl's
wergeld of 200 Mercian scillings is also mentioned.
The concurrence of independent traditions thus

438 Early Anglo-Saxon Custom.
seems to trace back the difference between the
Wessex and Mercian wergelds as well as the differ
ence between the twelve-hynde and twy-hynde classes
in both cases into the early Anglo-Saxon period.
And if we may date them back to the time of King
Ine — two centuries before the invasion of the North
men — they may well go back earlier stiU. For
wergelds which have aheady become traditional in
the seventh century may not improbably have been
brought by the invading tribes with them into Britain
in the fifth and sixth centuries. The fact that the
Mercian and Wessex wergelds differed makes it un
likely that the traditional wergelds were first adopted
in Britain or acquired from the Bomano-British
population. That they differed exactly in the same
ratio as the two classes of Continental wergelds
differed is a fact which points stiU more strongly to
a Continental origin.
At 1 : 10 Moreover, the Wessex and Northumbrian wergeld
wergeld of 1200 scillings of five pence — i.e. 6000 pence or
pence^ sceatts at a ratio of 1 : 10 — was equal to 600 tremisses
200 gold or 200 gold solidi.
sohdi, and D
tbe The Mercian wergeld of 1200 scihings of four
Mercian • tnnn ¦ i
of 4800 pence — i.e. 4800 pence or sceatts — at the same ratio
leogold was equal to 480 tremisses or 160 gold solidi.
sohdi. That the ratio of 1 : 10 was not an unlikely one
is shown by its being the ratio under the Lex Salica
between the forty scripula of silver and the gold soli
dus before the Merovingian reduction of the standard
weight of the latter and the issue of silver tremisses.1
It was also the ratio at which twelve Boman argentei

1 See supra, pp. 180-185.

The Dooms of Ine. 439
or drachmae of silver were apparently reckoned as
equal to the Merovingian gold solidus.
The correspondence at this ratio of the Wessex
twelve-hynde wergeld with the Frankish wergeld of
200 gold solidi, and of the Mercian twelve-hynde
wergeld with the other Continental wergelds of 160
gold sohdi, is sufficiently striking to be taken into
account in any speculation as to the respective origins
of the West Saxon and Mercian invading tribes. But
that is not the object of this essay. It is enough to
have noted a fact which may or may not turn out to
be of some historical significance.
The value of the wergelds to this inquiry consists
in the light they throw upon the solidarity of tribal
society and the position in social rank of the various
classes of Anglo-Saxon society. But we have yet to
examine the laws of the Kentish kings, and it will be
best to suspend any further judgment on these points
until this remaining part of our task has been done.

CHABTEB XIV.
THE LAWS OF THE KENTISH KINGS.

Belgic agriculture.

I. DISTINCTION FROM ANGLO-SAXON LAWS, A.D. 596-696.
The laws of the Kentish kings, if they had been on
aU fours with the other Anglo-Saxon laws, would
have taken back the general evidence for Anglo-
Saxon custom another hundred years earher than
the Laws of Ine, and nearer the time of the conquest
of Britain. As it is, however, they have to be treated
as in part exceptional.
It is very probable that for a long period the
proximity of Kent to the Continent had resulted in
the approximation of its social and economic con
ditions to those of the opposite shore of the Channel.
The south-east corner of Britain was described by
Ctesar as having been colonised by Belgasand as having
been for some time under Belgic rule. The Belgic
tribes were the furthest advanced of Celtic tribes
and, according to Cassar, had fostered agriculture,
while his informants spoke of the interior of Britain
as pastoral. Under Boman rule the prominence of agriculture
was continued. Ammianus Marcellinus describes
large exports of British corn to supply Boman legions
on the Bhine. He speaks of the British tributarii in

Kentish Peculiarities. 441
a way which suggests that this part of Britain under
Boman rule had become subject to economic arrange
ments similar to those of the Belgic provinces of Gaul.
The introduction, by invitation, of the Jutes into The su-
Kent and their settlement, in the first instance at all y^S ofd
events, under a friendly agreement of payment of Kent-
annonce, may have given an exceptional character to
the results of ultimate conquest. The permanent
prominence of agriculture is perhaps shown by the
fiscal assessment in ' sulungs ' and ' yokes ' instead
of hides and virgates.
The exceptional conditions of the Kentish district
were continued by its being the earliest to come into
close contact with the court of the Merovingian
Franks, and with ecclesiastical influences from Borne.
The mission of St. Augustine resulted in the codifica- Early
plpvrf*flil in-
tion of Kentish custom into written laws a century nuences.
earlier than the date of the earliest laws of Wessex.
The peculiar character of Kentish custom may
have been furtheV maintained by the partial isolation
of Kent. The kinjf dom of the Kentish kings, though
lessened in EtheBiert's time by the encroachment of
Wessex, had maintained its independence of both the
Northumbrian and Mercian supremacy or Bretwaldor-
ship. . /
Apart from any original difference in .custom
between Jraish and other tribes this isolation naturally
produced/ divergence in some respects from the
customs ef the rest of Anglo-Saxon England and may
perhap/partly explain why the Laws of the Kentish
Kings fcame to be included in only one of the early
collections of Anglo-Saxon laws.
Further, when we approach the subject of Kentish

.•:/

<;,¦¦¦¦„'

442

Early Kentish Custom.

Wergelds said to
differ
from
those of
WessexandMercia.

wergelds we do so with the direct warning, aheady
aUuded to, of the writer of the so-caUed Laws of
Henry I., that we shaU find them differing greatly
from those of Wessex.
This we have said according to our law and custom, but tha
difference of wergeld is great in Kent, villanorum et baronum.
Moreover, in after times Kentish custom differed
from that of other parts of England in the matter of
succession. The custom of Gavelkind prevailed in
Kent. And among the statutes after the Norman
Conquest there is an undated statement setting forth
peculiar customs of Kent in matters where they
differed from those of the rest of the kingdom.
Some of these differences may have been of later
origin, but a comparison of the laws themselves with
other Anglo-Saxon laws is conclusive upon the point
that important differences always existed and, what is
more, were recognised as exi
Although the Kentis"
with other Anglo-Saxon la
that of Bochester, yet they we1
He mentioned them in the pr
as the Mercian laws as amon
before him in framing his own
seen that at the time of the Da
differences between the Kentish a
known and noted correctly
Grith and of Mund.'
Finally, in its system of monetar
Kentish kingdom seems to have beer
the first. And as our knowledge
wergelds is essential to an understa
division of classes, a good deal must

B5aaa

not included
nuscript but
King Alfred.
aws as well
he had
we have
i certain s were
t 'Of

Sca?tts and Scillings. 443
a previous understanding of the currency in which
the amounts of the wergelds are described. Before
proceeding further it is necessary, therefore, to devote
a section to a careful consideration of the subject.
The experience already gained will not be thrown
away if it should help us to understand the meaning
of the scsetts and sciUings of the Kentish laws.
II. THE SCAETTS AND SCILLINGS OF THE KENTISH LAWS.
All the payments mentioned in the Kentish laws
are stated in scsetts and scillings — naturally, by far
the larger number of them in the latter.
What were these scsetts and scillings? First,
what were the scsetts ? x
We have already seen that before the time of Offa The scaetts
of 28*8
the silver coinage current in England consisted mainly wheat-
of the silver tremisses of Merovingian standard, i.e. Ike'Mero-
twenty to the Boman ounce, or 28- 8 wheat-grains. vingian.
i < tremissis.
These are known to numismatists as silver pence of
the Sceatt series. /
That these silver coins were those known by the
name of/sceatts we,.seem to have the direct and in
dependent evidence^ of the following fragment 'On
Mercian Law,' already quoted but sufficiently impor
tant to be repeated here.2
Ceorles wergild i£ on Myrcna The ceorl's wergeld is in the
lagejsc scill. . law of the Mercians 200 scihings.
pegnes wergild is syx swa The thane's wergeld is six
mijSel, feet bio1 twpf hund scih. times as much, i.e. 1200 scil-
, & lings.
 4 
r ;
; 1 The difperence in spelling I where the spelling is sceatt.
f will be noticed. The Kentish 2 Schmid, Anhang viA. p. 398.
** spelling is ^mostly sccctt. Else- I

444

Early Kentish Custom.

ponne bio" cynges anfeald
wergild six f egna wer be Myrcna
laga faet is xxx fusend sceatta,
and fast biS eahes cxx punda.

Then is the King's simple
wergeld six thanes' wergeld by
Mercian law, i.e. 30,000 sceatts,
and that is in all 120 pounds.

Thesceattsminted

Now, as previously observed, the sum of 30,000
sceatts must evidently be taken as a round sum.
The statement that the King's simple wergeld was
120 pounds or six times the thane's wergeld of 1,200
Mercian scillings seems to make this clear, for
7200 Mercian sciUings of four sceatts (28,800 sceatts)
would amount exactly to 120 pounds.1
That the sceatts of this fragment of Mercian law
were the same silver coins as the scsetts of the Kentish
by Kentish iaws -1S further confirmed by numismatic evidence.
moneyers. _ J
The evidence of the coins themselves and of the
names of the moneyers impressed on them seems to
make it probable that to a large extent tiU the time
of Egbert, who was intimate with Charlemagne, and
perhaps even till the time of his grandson Ethel-
bald, in the words of Mr. Keary, ' Kent stiU provided
all the currency of the South.'2 It would seem, there
fore, that practicaUy during the whole period of the
issue of the silver pence of the Sceatt series the
greater part of them were minted by Kentish moneyers.
And thus numismatic evidence applies not only to
the coinage of Wessex but also to that of Mercia.3

1 It cannot be right, I think,
to reason the other way with
Schmid, that as there were 30,000
sceatts in the King's wergeld of
120 pounds, there must have been
250 sceatts in the pound and 4-166
sceatts in the Mercian scilling
instead of four.

2 Catalogue &c, Introduction,
p. xviii. 3 ' We must remember further
that many of the coins of the
Kings of Mercia were probably
likewise struck in Kent, and that
when we find, as we do, the same
moneyers' names occurring on the

Sca?tts and Scillings.

445

We can hardly be wrong, then, in thinking that
this valuable fragment of Mercian law in using the
word sceatt referred back to ancient custom before
the sceatt had been superseded by the penny, and
therefore must be good evidence that the silver coins
called sceatts in Mercia were similar to those called
scsetts in Kent. In other words the Kentish sccett,
notwithstanding the shght difference in speUing, was
almost certainly the silver sceatt of 28 -8 wheat-
grains, i.e. twenty to the Boman ounce.
It is quite true that the word sceatt was used in
the laws in two senses, sometimes for ' money ' or
' property,' and sometimes for the coin.1 But so also
was the sca?tt of the Kentish laws.2 And it may not
always be easy to ascertain with certainty which
meaning is the right one.
But the Kentish and Mercian laws were not alone
in using the word for the silver coin. The phrase
' sceatts and scillings ' was elsewhere used to denote
the typical smaller and larger monetary unit, or
perhaps we ought to say the silver and the gold unit.
In the tenth-century translation of the New Testa ¦
ment the word denarius is translated by ' psening ; '
for long before this the penny of 32 wheat-grains
had superseded the old coinage of the ' Sceatt series.'
But in the translation of Ulphilas the word ' skatt ' is
used for the silver denarius.3

coins of a King of Mercia . . .
and on the coins of Ecgbeorht, the
probability is that these moneyers
were Kentishmen who struck first
for one master of their country
and then for the other ' (lb. p. xvii).

1 See Schmid's Glossary, sub
voce. 2 See Laws of Ethelbert, ss.
77, 78 and 79, and 83.
3 In translating Luke xx. 24
and Mark xii. 15, ' Show me a

446

Early Kentish Custom.

'Sceatts and
scillings.

At the same time it is important to observe that
the word scilling was the Gothic word applied to the
gold solidus in legal documents of the sixth century
during Gothic rule in Italy.
According to the bilingual records in the archives
of the Gothic church of St. Anastasia at Bavenna
payments were made in so many ' skiUigans.'1 So
that probably silver skatts and certainly gold scillings
were familiar to the Goths of Italy.
Again, sceatts and sciUings were evidently the
two monetary units familiar to the mind of Csedmon
or whoever was the author of the metrical transla
tion of Genesis. In c. xiv. 23 Abraham is made to
swear that he would take neither ' sceat ne scilling '
from the King of Sodom.
Moreover, in the fragment on Oaths 2 in the Anglo-
Saxon Laws (Thorpe, p. 76) the same phrase is used :

On lifiendes Godes naman. ne
Searf ic N. sceatt ne scyhing. ne
pamig ne paaniges weortS.

(s. 11) In the name of the
living God I owe not to N. sceatt
nor scilling, not penny nor
penny's worth.

penny,' the word used to translate
1 denarius ' is skatt.
Again, Luke vii. 41, the two
debtors, one owing 500 and the
other 50 denarii, are translated by
Ulphilas as owing ' skatte finf-
hunda ' and ' skatte finftiguns.'
Again in John xii. 5, ' Why
was not the ointment sold for 300
denarii ? ' ' ccc skatti ' are the
words used, and so also in the
parallel passage Mark xi. 5,
' thrijahunda skatti.'
In all these cases it seems to
be clear that the skatt is the coin.

And that it was a silver coin seems
to be shown by the use by Ulphilas
of the word skatt in reference to
the ' thirty pieces of silver ' in
Matt, xxvii. 6-9.
1 The word occurs seven times
in the five Gothic records from
Naples and Arezzo generally ap
pended to editions of ' Ulfilas.' In
the edition of Massmann (Stutt
gart, 1857) see vol. ii. p. 810. In
that of Heyne and Wrede (Pader-
born, 1896) see p. 227 &c.
2 Schmid, Anhang x. p. 404 ;
Thorpe, p. 76.

Sca?tts and Scillings.

447

Surely in both cases the phrase ' sceatt ne scil
ling' refers to coins or units of account of two
denominations in current use, as in the Kentish laws.
It is even possible perhaps to find an illustration
of the reckoning in sceatts and scillings in the
well-known passage in the ' Scald's Tale ' already
quoted.

se me beag forgeaf
on tham siex hund waes
smastes goldes
gescyred sceatta
scilhng-rime.

He me a bracelet gave
on which six hundred was
of beaten gold
scored of sceatts
in scillings reckoned.

If these words may be properly translated literally
' Of sceatts in scillings reckoned ' 1 and are taken
to mean ' 600 sceatts in scillings reckoned,' the
phrase accords very closely with the method of
reckoning in the Salic laws — 'so many hundred
denarii, i.e. so many solidi.'
Beturning to the sceatts and scillings of the Laws
of Ethelbert, the most obvious suggestion would be
that the currency in Kent was similar to that on the
other side of the Channel under the Merovingian
princes. The two courts were so closely connected
by Ethelbert's marriage, and probably by trade
intercourse, that the most likely guess, at first sight,
would be that the Kentish scsetts were silver tremisses
and the Kentish sciUings gold solidi like those of the
Lex Salica.
We have seen that the Merovingian currency was
mainly in gold tremisses, and as many of the 100 gold

1 This maybe doubtful : Sceat
ta scilling -rim, ' gold to the worth
of 600 scihings,' Grein, ii. p. 408 ;

sceatta, gen. plural of ' sceatt,'
nummus, pecunia. Grein, ii. p.
405.

448

Early Kentish Custom.

The
scilling of 20
scaetts =
one ounce
of silver.

tremisses contained in the celebrated ' Crondale find '
are believed by numismatists to have been coined
in Kent, by English moneyers, the currency of gold
tremisses in England is directly confirmed, though
the silver currency seems very soon to have super
seded it.1
At the date of Ethelbert's Laws (a.d. 596) the
Merovingian currency was still mainly gold — i e. gold
tremisses, three of which went to the gold solidus of
the Salic Laws. And if the scilling of Ethelbert, hke
the solidus of the Franks, had been a solidus of forty
denarii we might have concluded at once that Ethel
bert's scilling, like the Merovingian sohdus, was a
solidus of three gold tremisses, or forty sUver sceatts.
But the facts apparently wiU not allow us to come
to this conclusion.
Schmid has shown — I think, conclusively — by
inference from certain passages in Ethelbert's Laws,
that the Kentish scilling was of twenty scsetts instead
of forty.2 We therefore must deal with the Kentish
scilling on its own evidence.

1 British Museum Catalogue,
Anglo-Saxon series, vol. i. xiii.
2 See Schmid's Glossary, sub
' Geldrechnung,' p. 594. The in
ference seems to be too strong to
be disregarded. Comparing s. 54
with ss. 70-72, the great toe is
valued at 10 scihings, i.e. half the
value of the thumb in s. 54, viz.
20 scillings. And it is stated in
s. 54 that the thumb nail is worth
3 scillings, and in s. 72 that the
toe nail is to be paid for at 30
scaetts, which would be half 3 scil
lings of 20 sceatts. The other

toes are said in s. 71 to be re
spectively worth half the fingers.
The finger nail in s. 71 at 1 scil
ling compares with the other toe
nails at 10 scaetts in s. 72 — again
one half. Presuming that the
scale of one half is maintained
throughout, 30 scsstts is half 3
scihings and 10 scaetts half one
scilling. The scilling, therefore,
must be 20 scaetts.
This conclusion is strength
ened by the graduated scale of
payments in ss. 33-36, viz. 50
soffitts (i.e. 1J scilling) 3, 4, 10,

Sca?tts and Scillings. 449
Now, twenty sceatts of 28-8 wheat-grains, as we
have seen, made the Boman ounce of 576 wheat-
grains. The Kentish scilling was therefore the
equivalent of an ounce of silver. And so in the
Kentish laws, so far as reckoning in silver was con
cerned, the same method was adopted as that of the
Welsh, who reckoned in scores or uncia? of silver, and
that which became the common Frankish and Norman
reckoning of twenty pence to the ounce and twelve
ounces to the pound.
Indeed, when we consider that under common
Scandinavian custom gold and silver were weighed
and reckoned in marks, ores, and ortugs, it would
seem natural that the Kentish immigrants from the
North should have been already familiar with a
reckoning in ores or ounces of silver,
But why did they call the ounce of silver a scil
ling ? We might as weU perhaps ask why the Wessex
sciUing was five pence and the Mercian sciUing four
pence. But the word scilling had, as we have seen,
been used by the Goths in Italy for the gold solidus.
And on the Continent the gold solidus in the sixth
and seventh centuries, and indeed till the time of
Charlemagne, was so far the recognised symbol of
value that the wergelds of the Northern tribes, whether
they remained in the north or emigrated southwards,
were invariably stated in their laws in gold solidi.
The most natural inference would therefore seem to

20 scihings. See also s. 16, where
the scale is 30, 50 (? 60) sceatts
and 6 scillings (120 scaetts). In
ss. 58-60 a bruise is 1 scilling,
covered 30 scaetts, uncovered 20
scaetts. It seems to be impossible

to make these figures comport
with the Mercian scihing of 4
scaetts or the Wessex of 5 scaetts
or the Salic solidus of 40 scaetts.
The conclusion must be that the
Kentish scilling was of 20 scaetts.

G G

450 Early Kentish Custom.
be that the Kentish scilling, like that of the Salic law,
must have been a gold solidus equated, however, in
account with twenty silver pence or scsetts.
The Now, at the ratio of 1 : 10 the ore or ounce of
Suint twenty silver scsetts would equal a gold sohdus of
Tsdidus two gold tremisses instead of three.1 And when it is
of two considered that the main Merovingian currency on
{^misses the other side of the Channel was of gold tremisses
Saxon" it seems natural that the ounce of sUver should be
solidus. eqUatea with an even number of gold tremisses.
Nor would there be anything unprecedented or
unusual in a gold sohdus of two tremisses instead of
three. For we have seen that when Charlemagne con
quered the Frisians and the Saxons, he found that the
solidi in which they had traditionaUy paid their
wergelds were not always, Uke the Imperial and the
Salic solidi, of three gold tremisses, but that each
district had its own pecuhar sohdus. The sohdus of
the southern division of Frisia was of two and a half
gold tremisses. The solidus of the middle district
was the ordinary gold solidus of three tremisses. The
traditional solidus of the district presumably nearest
to the Jutes, i.e. on both the Frisian and the Saxon
side of the Weser, was the solidus of two tremisses.
The Saxon solidus of two tremisses, representing the
one-year-old bullock, was that in which according
to the Lex Saxonum the Saxon wergelds had been
traditionally paid.
We have no distinct mention of a Jutish solidus,
but as the Jutes probably came from a district not
far from that of the North Frisians and Saxons there
1 576 divided by 10 «= 57-6, i.e. two tremisses of 28-8 wheat grains.

Sca?tts and Scillings. 451
would be nothing abnormal or surprising in their
reckoning in the same solidus as their neighbours, viz.
in the gold solidus of two tremisses, and in the
Kentish immigrants continuing the same practice.
But this as yet is only conjecture.
So far, then, as the facts of the prevalent coinage
and currency are concerned, all that can be said is
that the hypothesis that the Kentish scilling was that
of two gold tremisses has a good deal of probability
in its favour. But there is other and more direct
evidence of the truth of the hypothesis.
In the first place, as already stated, in the pre
face to King Alfred's Laws he expressly mentions
his knowledge of the laws, not only of Ine and of
Offa, but also of Ethelbert, the inference being that
in his own laws he retained, inter alia, some of the
enactments of Ethelbert which were in his own view
worth retaining.1
Now, King Alfred fixe d the king's mund-byrd at five Confirma-
pounds of silver, i.e. 240 Wessex scillings, while he other
must have known that in the Kentish law the king's *vh^enoe-
mund-byrd was fifty Kentish scillings. The difference Kins's
_ J •> o mund-
in sciUings must have struck him, but he probably byrd of
knew perfectly weU what the Kentish sciUings were, pounds
For when we compare these two mund-byrds we to^gsex
find that at a ratio between gold and silver of 1 : 12 and Kent.
(which, as we have seen, was the Frankish ratio of
Charlemagne's successors) fifty Kentish scillings of
two gold tremisses did equal exactly five pounds. Fifty

1 Alfred's words were : ' But
those things which I met with,
either of the days of Ine my kins
man, or of Offa King of the
Mercians, or of .Ethelbryht, who

first among the Enghsh race re
ceived baptism, those which
seemed to me the rightest, those
I have here gathered together and
omitted the others.'

g g 2

452

Early Kentish Custom.

Kentish scillings or 100 Merovingian gold tre
misses, at 1 : 12 were equal to 1200 silver tre
misses or sceatts of the same weight, i.e. five pounds
of 240 sceatts ; or, in other words, 100 gold tremisses
(nova moneta) were equal at the same ratio to five
pounds of 240 of King Alfred's pence of 32 wheat-
grains. The equation was exact.
And further, we have seen that in the time of Cnut
the Kentish king's mund-byrd was well known and
declared to be five pounds according to Kentish law,
although in that law it was stated to be 50 scillings.
The passage has already been quoted from the
MS. G of Cnut's Church law, s. 3, in which, after
stating that ' the grith-bryce of the chief minster in
cases entitled to " bot " is according to the king's
mund, that is five pounds by English law,' the
additional information is inserted,1

On cent lande aet fam mund
bryce v pund fam cingce.

In Kent land for the mund-
bryce v pounds to the King.

Further in the same MS. G of Cnut's secular
law, s 63, is the foUowing : 2 —

Gif hwa ham socne ge wyrce
ge bete -f" mid .v. pundan. fam
cingce on engla lage ~} on cent aet
ham socne v. fam cingce ~] freo
fam arce bisceope ~\ dena lage swa
hit aersteod ~j gif hine mon f aer
afylle liege asgilde.

If anyone commit hamsocn
let him make bot for it with v
pounds to the King by Enghsh
law, and in Kent from hamsocn v
to the King and three to the arch
bishop and by Danish law as it
formerly stood, and if he there be
killed let him lie unpaid for.
It is not very clear what the ham-socn was. In
the Latin versions it is translated bjr ' invasio domi.'
And it seems to be the same thing- as the 'heimsokn ' of

1 British Museum Cott. Nero
A. 1. fol. 5, and supra, p. 346.

2 British Museum, ibid. fol. 33 b.

Sccetts and SciUings.

451

the Norse laws.1 It seems to be a breach of the peace
within the sacred precinct of the 'heim,' and the
penalty seems to place it on the same ground as the
borh-bryce and mund-byrd of the king so as to have
become in Cnut's time one of the crimes which in
Kent also involved a penalty of fifty Kentish scillings.2
Here, then, the inference again is that fifty
Kentish scillings were equal in Cnut's time to five
pounds of silver.
It is quite true that these two statements of
Kentish law are not found in the other manuscripts
of Cnut's laws, so that in one sense they may be
regarded as interpolations, but in the MS. G they are
not insertions made afterwards. In both passages the
words form an integral part of the text, which
throughout is written in a clear and excellent hand.
It is difficult to suggest any reason for the inser
tion of these two statements of Kentish law other than
the deliberate intention to point out that the amount
of the Kentish king's mund-byrd of fifty Kentish
sciUings was the same as the Wessex mund-byrd of
five pounds of silver.
In addition, therefore, to the fact that at a ratio
of 1 : 12 between gold and silver the two amounts
were alike, these passages seem to show that the
penalty of fifty Kentish scillings had become
permanently recognised in Cnut's time as equal to
the English penalty of five pounds of silver.3

1 See Gulathing, 178.
2 Compare Cnut's secular
laws, s. 59, onBorh-bryce. In both
passages the additional words
' and three to the archbishop ' do
not seem to be taken from Kentish
law. It is obvious from the frag

ment ' Of Grith and of Mund ' that
it was weh known that in Kentish
law ' the mund-bryce of the King
and the archbishop were the same.'
2 See also Anhang iv. Schmid,
p. 385.

454

Early Kentish Custom.

Scsettscannot

If the comparison had been made throughout in
silver sceatts, the equation would not have held good
so exactly, for 1000 sceatts would not have equaUed
exactly five pounds, i.e. 1200 of the same sceatts.
The exact equation seems to have been between fifty
Kentish gold scillings of two tremisses, and five pounds
of silver at the current Frankish ratio of 1 : 12. So
that the direct evidence of these passages from Cnut's
laws goes very far to verify the hypothesis derived
from numismatic considerations that the sciUing of
the Kentish laws was a gold sciUing of two tremisses,
like that of the Continental Saxons and North-East
Frisians. It is, however, only fair to say that Schmid, whUe
have been adhering to the view that the Kentish sciUing was of
farthings. twenty sceatts, has suggested that these sceatts may
have been, not silver tremisses or pence, butfarthings,
so that the Kentish scilling of twenty farthings might
be identical with the Wessex sciUing of bd.1 Konrad
von Maurer held the same view. 2 But if this could be
supposed for a moment, the Kentish scsett would then
be only one quarter of the sceatt of the fragment of
Mercian law, and the mund-byrd of King Ethelbert
would be only a quarter of that of the Wessex King,
notwithstanding the assertion in MS. G of the Laws
of Cnut that the Kentish mund-byrd was five pounds
of silver, like those of other Enghsh laws. With all
deference, therefore, to the view of these great
authorities, a careful examination of the evidence
seems to lead to the conclusion that it cannot be

1 See Schmid, Glossary, sub
' Geldrechnung,' p. 594.
* Konrad von Maurer's ' Ueber

' Angelsachsische Bechtsverhalt-
nisse,' in the Kritische Ueber-
schan, vol. iii. p. 48.

Laws of Ethelbert.

455

maintained. Nor does there appear to be any reason
why the Kentish scilling should be expected to be the
same as the Wessex sciUing, as we know that the
Wessex sciUing of bd. differed from the Mercian
sciUing of 4d
We adhere, then, to the view that the Kentish
scilling was a sciUing of two gold tremisses like the
Saxon solidus, and that it was equated with the ore
or Boman ounce of silver, i.e. twenty sceatts.
The reader will be able to form his own judgment
as to whether examination of the various clauses
of the Kentish Laws and the amounts of the wergelds
and other payments now to be considered wiU confirm
this conclusion or not. I think it will be found sub-
stantiaUy to do so.

Kentish
scillingthereforeof two
gold tre
misses or
twentysilverseastts or
Boman

III. THE LAWS OF ETHELBERT.
The Laws of Ethelbert begin with the heading :
'These are the dooms which King Ethelbert established
in the days of Augustine.'
This heading probably did not form a part of the
original laws, but it may serve to remind us that
ecclesiastical influence must be reckoned with in Evidence
their consideration and that some of their clauses influence!
may have been modifications of ancient custom
rather than statements of what it originaUy was.
The first clause is as follows : —

12 fold
11 9 63 2 2

Godes feoh ~j

ciricean . xii .

The property of God

gylde.

and of the Church.

Biscopes feoh

. xi . gylde.

A bishop's

Preostes feoh .

ix . gylde.

A priest's .

Diacones feoh

• vi . gylde.

A deacon's

Cleroces feoh .

iii . gylde.

A clerk's .

Cyric-friS . ii .

gylde.

Church frith

M[aef el] MS .

ii . gylde.

[Moot] frith .

456 Early Kentish Custom.
This clause is read by Thorpe and Schmid and
Liebermann as enacting that thefts were to be paid
for on this scale, so many multiples of the value of
the goods stolen.1
Clause 2 enacts : —
Mund- Gif cyning his leode to him i If the King cah his leod to
byrd of gehateS. ~) heom mon faer yfel i him and any one there do them
the King ge ^Q y _ Dote. ~] cyninge . 1 . scil- evh, the bot is twofold and 50 scil-
£ngSsCil" linga. I hugs to the King.
Here are two distinct things. The bot is the
payment to the person called to the King. WhUe
thus in attendance any injury is to be paid for two
fold. The payment of fifty sciUings to the King is
the mund-byrd or payment for breach of his protec
tion or peace.
Clause 3 is as foUows : —

Gif cyning aet mannes ham
drincffio' ~\ p asr man lyswaes hwaet
gedo twi bote gebete.

If the King drink at any one's
' ham ' and any one there does
something wrong, then let him
pay twofold bot.

That is, the presence of the King at a subject's
house is the same thing as the subject being in the
King's protection, and the bot for any wrong done to
the subject, while the King is there, is doubled.
Clause 4 enacts : —
Gif frigman cyninge stele . ix . I If a freeman steal from the
gylde forgylde. I King, let him pay ninefold.
It seems at first sight hardly likely that the Arch
bishop should be compensated elevenfold and the
King only ninefold, but as this is repeated in the
1 Compare the ' octogild ' and j of ' xii gylde ' seems to be payable
' novigild ' of the Alamannic and I with ' twelve times the gylde.'
other laws. The literal meaning !

Laws of Ethelbert. 457
statement of the Kentish law in the fragment ' Of Grith
and of Mund ' the text may be taken as correct.
Clause 5 enacts : —

Gif in cyninges tune man
mannan ofslea . 1 . scih. gebete.

If a man slay another in the
King's tun, let him make bot with
50 scihings.
The bot here again is evidently the mund-byrd
payable to the King for breach of his protection, i.e.
fifty Kentish scillings.
Clause 6 enacts : —
Gif man frigne mannan of- I If any one slay a freeman, 50
sleaho1 cyninge . 1. scih to drightin- scihings to the King as drihtin-
beage. I beag.
Here again the payment is to the King, but in
this case, if the word is to be taken literally, it is not
perhaps for breach of his peace, but for the killing of
his man. He claims it as his ' drihtin-beag ' or
lord's-ring. It is, to use the later Saxon phrase, the
King's manbot or value to him of his man kiUed.
Up to this point the question of wergeld has King's
not been mentioned at aU. But in clause 7 is the and out-
foUowing : *- f ™e
If the King's ambiht-smith werSeld-
[official-smith] or laad-rinc [out
rider] slay a man, let him pay a
medume leodgeld.

Gif cyninges ambiht-smio1 offe
laad-rinc mannan ofslehS. medu-
man leodgelde forgelde.

Liebermann would insert the word ' man ' after
' gif 'and so read this clause as stating the wergeld
of the King's smith and laadrinc-man when slain to
be a ' medume wergeld ' (mittleres wergeld). But
the clause is complete as it stands without the

1 The division of the words in
the MS. is as follows : ' Gif
cyninges ambiht smiti offe

laadrinc mannan of slehS
dumanleod gelde forgelde.'

458

Early Kentish Custom.

Beason why not
a full
wergeld. Then-

insertion of ' man,' and, read as it is, means that the
smith and the outriders of the King, if they slay a man,
are to pay a 'medume leodgeld.' But what does
this mean? The word medume was translated by
Wilkins by ' moderata.' Thorpe read the phrase as
meaning ' a half wergeld ; ' 1 Schmid as a 'fit and
proper ' one ; and Liebermann would take it to refer
to the wergeld of a person of middle rank or
position. We must leave the true meaning for the
present in doubt.
Apart from the amount of the wergeld, if we
would understand this passage we have surely first to
consider for what reason these two royal officials
dangerous ghould be singled out from aU others and made liable
work. o
to pay wergelds. The inference must be that in the
performance of their duties they were pecuharly hable
to injure others. The King's smith in his smithy
forging a weapon, and the outrider forcing a way for
the King through a crowd, might very easUy through
carelessness or in the excitement of work cause the
death of another. The necessity apparently had arisen
to check their action by making them hable to pay a
wergeld.2 But the wergeld was not to be the usual
one. It was to be a ' medume leodgelde.'
For the present the exact meaning may be left
open, but whether the true reading be a half-wergeld
or not, the inference seems to be that a full wergeld
was not to be paid. Brobably it had come to be re
cognised that a person engaged in a speciaUy

1 So also Grimm in his
Deutsche Bechts Alterthumer,
p. 653, ' dimidio, nioht moderato,
wie Wilk. iibersetzt.' Compare
' medeme mynster,' supra, p. 346,

and 'medeme thegn,' Cnut, ii. 71,
s. 2. 2 Possibly the King's servants
were otherwise exempt for injuries
done in carrying out their work.

Laws of Ethelbert.

459

dangerous trade could not be held responsible to the
same extent as in the case of an ordinary homicide.1
These considerations are important, because the
' medume ' wergeld will again claim notice and every
hint is valuable when, as in the case of these laws,
we have only hints to guide us.
In Clause 8, the King's mund-byrd is declared to
be fifty scillings ; and the next two clauses relate
to injuries done to the King's servants.

Gif man wiS cyninges maegden-
man gehgetS . 1 . scihinga gebete .
Gif hio grindende f eowa sio
. xxv . scihinga gebete. Sio f ridde
. xii . scillrngas.
Cyninges fed-esl . xx . scihinga
forgelde.

10. If any one he with a Bots for
King's maiden, let him pay a bot barm done
of 50 scillings. Servants3
11. If she be a grinding slave,
let him pay a bot of xxv scihings.
The third [class] xii scillings.
12. Let the King's fed-esl be
paid for with xx scihings.

These bots are evidently payable to the King for
injuries done to him by abuse of his servants of
different grades. They were not wergelds.
We have now done with these bots to the King,
and the laws turn to consider injuries done and bots
due to the eorl.

Gif on eorles tune man man
nan ofsUeho1 . xii . scih. gebete.

13. If a man slay another in Bots due
an eorl's tun, let him make bot to the
with xii scihings. eo"-

1 Cf. Book of AiciU, p. 267,
where injury inflicted in quick
drwimg or at work has only a
half fine ; ' the excitement of the
work or of quick driving takes the
other half fine off them.' See
also the elaborate rules with
regard to accidents of the smith
in his smithy, p. 187 &c. The
general rule stated is 'that the
person who plies the sledge on

the anvil is exempt from penalties
for injuries arising from the
work he is engaged on ; ' and
again ' if either the sledge or anvil
break, he is exempt for injuries to
idlers, and he pays one third com
pensation to fellow labourers, &c.'
Clerical influence may perhaps be
recognised in both the Brehon and
Kentish clauses.

460

Early Kentish Custom.

Gif wiS eorles birele man
geligeS . xii . scill. gebete.

14. If a man he with an eorl's
birele, let him make bot with xii
scihings.

And then from the bots due to the eorl the laws
pass to those due to the ceorl. The foUowing clauses
show that under the Kentish laws the ceorl also had
a mund-byrd.

Bots due
to the
ceorl.

Ceorles mund-byrd . vi . scil-
lingas. Gif wiS ceorles birelan man
geligeS . vi . scihingum gebete.
aet f sere ooere f eowan . 1 . scaetta.
aet fare friddan . xxx . scaetta.

15. A ceorl's mund-byrd vi
scillings. 16. If a man he with a ceorl's
birele, let him make bot with vi
scillings ; if with the slave of the
second class 1 scaetts ; if with one
of the third class xxx scaetts.

Thus we get a scale of mund-byrds or penalties
due for breach of the peace or protection of the
King, the eorl, and the ceorl : —

Mund-byrd of
King, eorl,
and ceorl.

King's mund-byrd
Eorl's Ceorl's „

50 scillings
12 „
6 „

but so far we have learned nothing about the amount
of their wergelds.
Clause 17 fixes the bot for inroad into a man's
' tun ' at six scillings for the first person entering,
three for the next, and one for the rest.
Lending Then foUows an interesting set of clauses, which
inTbrawi. I think must be read together, as aU referring to the
case of what might happen in a brawl in which one
man lends a weapon to another.

Gif man mannan waepnum
bebyref Saer ceas weortS ~} man
namigyfel ne gedef . vi . scihingum
gebete. Gif weg reaf sy gedon . vi . scil-
lingum gebete.

18. If a man furnishes weapons
to another where there is strife,
and the man does no harm, let
him make bot with vi scihings.
19. If weg-reaf [street rob
bery] be done, let him make bot
with vi scillings.

Laws of Ethelbert.

461

Gif man f one man ofsleaeho'
xx . scihingum gebete.

Gif man mannan ofslasho'
medume leod-gild . c . scihinga
gebete. Gif man mannan ofsleaho" aet
openum grssfe . xx . scihinga
forgelde ~) in . xl . nihta ealne leod
forgelde. Gif bana of lande gewitef fa
magas healfhe leod forgelden.

20. If any one slay that man
[i.e. to whom he lent the
weapons], let him [the lender]
make bot with xx scillings.
21. If a man slay another, let
him [the lender] make bot with
a medume leod-geld of c scillings.
22. If a man slay another,
let him at the open grave * pay xx
scillings and in 40 nights pay a
full2 leod.
23. If the slayer depart from
the land, let his kindred pay a half
leod.

These clauses taken together and followed care-
fuUy, I think, become intelligible.
A man lends weapons to another who is engaged
in a brawl, and the question arises how far he is to
be responsible for what happens in the brawl. In
the case dealt with in these clauses two things are
involved — the lending of the weapons and the joining
thereby in the fray. In the later laws there are
provisions for both points. Under King Alfred's laws How
(s. 19) the man who lends his weapon to another mAifred's-
who kills some one therewith has to pay at least one ine's^aws
third of the wergeld unless he can clear himself from
evil intention.
Under Ine's laws (s. 34) a man who joins in a
fray in which someone is killed, even if he can clear
himself from the slaying, has to pay as bot (gebete)
one fourth of the wergeld of the slain person whether
twy-hynde or ' dearer born.' Under Alfred (29 to

1 That the soul-scot in later
times was paid at the open grave
see Ethelred, v. 12, vi. 20, ix. 13 ;
C. E. 13.
2 Compare s. 86 and 87, where
ealne weorfte means a ' whole

worth ' of an esne, and contrast the
' medume leodgild ' of 100 scillings
payable as bot by the lender with
the ' ealne leod ' payable by the
slayer.

462 Early Kentish Custom.
31) the actual slayer has to pay the wergeld, and in
addition each of the others in the fray has to pay as
' hloS-bote ' 30 scillings for a twy-hynde man, 60 for
a six-hynde, and 120 for a twelve-hynde man.
These later precedents may materially help us in
the understanding of the Kentish clauses.
Clauses 18 and 19 make the lender of the weapon
pay a bot of six scillings though no evil be done or
only street robbery occur.
Clause 20 provides for the case in which the man
to whom he lent the weapon was slain, and in this
case the bot is raised to twenty sciUings.
Theiender Clause 21 seems to deal with the case of some one
"mldume" G^se being slain, and makes the lender liable to pay a
wergeld Dot of a ' medume leod-gild' of 100 sciUings for
for person °
slain. mixing in the fray. It would be natural that the bot
should be greater if another was slain than if the
man to whom he lent the weapons had been slain.
And if the later precedents are to guide us, the bot
of a ' medume wergeld ' should not in amount equal
the whole wergeld but only a proportion of the
wergeld. If the bot of 100 -sciUings might be
considered as equal to a Aa^-wergeld we should gain
a clue to what the whole wergeld might be. And
this would be a tempting inference. But we are not,
it seems, as yet warranted in making it. We must
therefore at present content ourselves with the
conclusion that the ' medume wergeld ' cannot mean
a whole wergeld, otherwise the lender of the weapon
would pay as bot as much as the wergeld would be
if he had killed the man himself.
Clause 22 makes 20 scillings payable at the open
grave and the whole leod in forty nights. It refers

Laws of Ethelbert.

463

apparently to the actual slayer's liability to pay the
whole wergeld (ealne leod) ; and finally clause 23
states that if the slayer depart from the land his
kindred shall pay half the wergeld of the slain
person. We are not told to whom the bot of the
' medume wergeld ' of 100 scillings was to be paid, nor
whether it was to be a part of the wergeld or
additional to the ' ealne leod ' paid by the actual
slayer. The later laws, as we have seen, afford pre
cedents for both alternatives.
Another point of interest arises from the last Kindred
clause. In the absence of the slayer his kindred had haffthe'
to pay only a half wergeld (healfne leod). Does this we^eld
justify the inference that m all cases of wergelds for the
the liability of the kindred was confined to one half?
It wiU be remembered that in the so-called ' Canones
WaUici' (supra, p. 109), if the slayer had fled, the
parentes of the slayer had fifteen days aUowed for
their payment of one half or flight from the country.
And only when they had paid their share could the
slayer return and make himself safe by paying the
other hah — the 'medium quod restat.' It seems not
unlikely that in the Kentish case also ecclesiastical
influence had limited the liability of the kindred to
the half-wergeld.
Clauses 25 and 26 are important, and we shall
have to recur to them.

Gif man ceorlaes hlaf-aetan
ofslaehS . vi . scihingum gebete.
Gif laet ofslaehS f one selestan
. lxxx . scill forgelde. Gif fane
ooerne ofslaehS . lx . scihingum for-
gelde.fanefriddan . xl. scihingum
forgelden.

25. If any one slay a ceorl's
hlafaeta, let him make bot with vi
scihings. 26. If [any one] slay a Icetoi the The three
best class, let him pay lxxx soil- 8rades of
lings ; of one of the second, let him
pay lx scihings ; of the third, let
him pay xl scillings.

464

Early Kentish Custom.

Edor- breach.

Bots for
injuries.

To these three grades of hets we shall have to
return when we sum up the evidence on the division
of classes. Next follow three clauses upon edor-breach. The
first relates to the breach by a freeman of the
enclosure or precinct presumably of a freeman, the
penalty being the same as the ceorl's mund. The
second imposes a threefold bot upon theft from
within the precinct. And the third refers to a
freeman's trespass over the edor or fence.

Gif friman edor-brecoe gedeS
vi scihingum gebete.
Gif man inne feoh genimetS se
man iii gelde gebete.
Gif fri-man edor gegange©1 iv
scihingum gebete.

27. If a freeman commit edor-
breach, let him make bot with vi
scillings. 28. If any one take property
[? cattle] from within, let him pay
a threefold bot.
29. If a freeman trespass
over a fence, let him make bot
with iv scillings.

After these clauses about edor-breach is the

following :
Gif man mannan ofslea agene
scaette. ) unfacne feo gehwilce
gelde. Gif friman wio" fries marines
wif geligeo* his wer-gelde abicge
-] otSer wif his agenum scastte
begete. ~) faem oorum aet fam
gebrenge.

30. If a man slay another,
let him pay with his own money
(scaette) and with any sound feo
[cattle] .
31. If a freeman he with a
freeman's wife, let him pay his
wergeld, and another wife obtain
with his own scsatte and bring her
to the other.

Then follow chapters relating chiefly to injuries
done and wounds inflicted, and the bots payable
to the person injured for the same. It is not needful
to mention more of these than the most important
one, viz. that for the destruction of an eye, hand,
or foot. The bots for all these in most other laws

Laws of Ethelbert.

465

were alike. In Ethelbert's Laws the bot for each For eye,
of the three is fifty scillings, which happens to be footlio*
the same as the mund-byrd of the King. sciUings.
After the clauses for injuries there are several
relating to women.

Gif fri wif locbore les waas
hwaet gedef xxx sell gebete.
Maegfbot sy swa friges
marines. Mund fare betstan widuwan
eorlcundre 1 scihinga gebete.
Dare ofre xx sell, Sare friddan
xii sell, fare feorSan vi sell.
Gif man widuwan unagne
genimef , ii gelde seo mund sy.

73. If a lock-bearing free wife Injuries
does wrong, xxx scillings bot. to women.
74. The maiden-bot is like a
freeman's. 75. The mund of the best
eorlcund widow is a bot of 1 scil
lings. Of the second rank xx
scillings, of the third xii scillings,
of the fourth vi scillings.
76. If a man carry off a widow
not in his mund, her mund shall
be twofold.

The clause relating to the mund of the four
grades of apparently eorlcund (?) widows does not help
us much to an understanding of what the grades of
Kentish society may have been. But it emphasises
a remarkable trait of these laws of Ethelbert.
Every class is divided in these laws into grades.
The clergy are divided into grades from bishops to
clerks. The female servants of the King's household
are divided into three classes, and so are the servants
of the ceorl's household. The lsets are divided into
three classes. And now the widows, whether all
eorlcund or not, are divided into four classes for the
purpose of their mund. The significance of these
divisions wiU be apparent hereafter. In the mean
time the mund is probably the amount to be paid by
a second husband to the parents or kindred of the
widow. Bassing from the mund of the widow, the
H H

466

Early Kentish Custom.

Position of a wife
under
Kentish custom.

TheKentishesne.

following clauses throw some light upon the position
of the wife under Kentish custom.

Gif mon maegf gebigec5,
ceapi geceapod sy gif hit unfacne
is. Gif it fonne facne is ef f aer
set ham gebringe -j him man his
scaet agefe.
Gif hio cwic beam gebyref ,
healfne scaet age gif ceorl aer
swyltef. Gif mid bearnum bugan wihe
healfne scaet age.
Gif ceorl agan wile swa an
beam. Gif hio beam ne gebyref
faederingmagas fioh agan *) mor-
gengyfe.

77. If any one buy a maid, let
the purchase stand if without
guile. But if there be guile, let
him bring her home again and let
them give him his money back.
78. If she bears a hving child,
let her have half the property if
the husband die first.
79. If she wills to go away with
her children, let her have half the
property. 80. If the husband wills to have
[them], [let her have] as one child.
81. If she bear no child, let
[her] paternal kindred have the
property and morgengift.

It is obvious from these clauses that under
Kentish custom the position of the wife was very
much the same as under Cymric and continental
German custom. The marriage was a fair contract
between the two kindreds.
The next clause enjoins a payment of fifty
shillings to the ' owner ' of a maiden if she be
carried off by force.
Lastly there are the foUowing clauses relating to
the position of the esne under Kentish custom. The
esne is considered to be a ' servus ' working for hire
rather than a theow.

Gif man mid esnes cwynan
geligef e cwicum ceorle ii
gebete. Gif esne of erne ofslea unsyn-
nigne, ealne weoroe forgelde.

85. If a man lies with an
esne's wife, the husband alive,
double bot.
86. If one esne kills another in
nocently, let the full worth be paid
for.

Laws of Hlotha?re and Eadric. 467

Gif esnes eage j foot of
weoroef aslagen ealne weoroe
hine forgelde.
Gif man mannes esne geb-
indef vi sell gebete.

87. If anesne's eye and foot are
struck out or off, let the full
worth be paid for it.
88. If a man bind a man's
esne, vi scillings bot.

There is nothing in these clauses, I think, to show
that the bot was payable to any one but' the owner
of the esne.
What the ' full worth ' of the esne was we are
not told.
IV. THE LAWS OF HLOTILERE AND EADEIC, A.D. 685-6.
Between the date of the Laws of Ethelbert and
those of other Kentish kings which have been pre
served nearly a century had intervened. So that
these later laws of Kent are nearly contemporary
with King Ine's Dooms of Wessex.
As in Ethelbert's laws, the main division of classes Eorlcund
of freemen seems still to have been that between ceorlisc
eorlcund and ceorlisc. But we get further valuable olasses-
information. The Laws of Hlothasre and Eadric open with
clauses which seem to fix the wergeld of the eorl at
three times that of the ordinary freeman.
They deal with the liability of an owner of an Theowner's
esne i for his servant's homicides. liability
, Tt . 1 for an
1. If any one s esne slay an esne>s
eorlcund man, one that is paid for homi-
with three hundred scillings, let oides.
the owner give up the slayer,
and add three manwyrths thereto.

Gif mannes esne eorlcundne
mannan ofslaehrj. fane f e sio f reom
hundum scill gylde se agend f one
banan agefe J do f aer frio man-
wyrt5 to. I

1 That the esne was very near
in position to the ' theow ' see
Alf. 43, where Church holidays are
to be given to ' all freemen but u h 2

not to theow-men and esne work
men ' — ' butan f eowum mannum
& esne-wyrhtum.'

468

Early Kentish Custom.

If an esne
slay an
eorl.

If he slay
a free-

Were the
wergelds 300 and
100, or
are they
half-
wergeld s ?

Gif se bana oSbyrste feorSe
manwyrS he to-gedo -j hine
geceenne mid godum aewdum f he
fane banan begeten ne mihte.

2. If the slayer escape, let him
add a fourth manwyrth and let
him prove with good compurga
tors that he could not catch the
slayer.

The next two clauses are as foUows

Gif mannes esne frigne man
nan ofslaeho' fane fe sie hund
scillinga gelde se agend fone
banan agefe ~) of er manwyro1 f asr
to. Gif bana oohyrste. twam man-
wyrSum hine man forgelde ~]
hine gecaenne mid godum aawdum
•p he fane banan begeten ne
mihte.

3. If anyone's esne slay a
freeman, one that is paid for with
100 scillings, let the owner
give up the slayer and a second
manwyrth thereto.
4. If the slayer escape, let
[the owner] pay for him with
two manwyrths and let him prove
with good compurgators that • he
could not catch the slaver.

This reading of these clauses is not that of
Thorpe or of Schmid, but that approved by the best
authorities.1 Following this reading as philologicaUy the most
correct one, the inference at first sight might be that
under Kentish law the wergeld of the eorlcundman
was 300 Kentish sciUings and that, of the freeman
100 scillings.
But there may be reason to doubt the correctness
of such an inference.
For the present we may leave the question of the
amount of the wergelds to consider the meaning of
the clauses in their main intention. And this seems
to be clear. Henceforth the owner of an esne was

1 Liebermann considers that
the 300 and 100 scillings are the
wergeld of the eorlcundman and
the freeman. His translation
reads : ' welcher steht im 300-
Scillwergelde ' and ' welcher im
100-Scillwergelde steht.' Whether

these payments are the wer
gelds is the point at issue.
Schmid, in his note to this
passage, favours the view that 300
scillings was the 7ta?/-wergeld of
the eorl and 100 scillings the half-
wergeld of the freeman.

Laws of Hlothasre and Eadric. 469
not to be accountable for the wergeld of the person The
slain or any part of it further than that if an eorl- UmH and

lessen the
owner's

cundman payable for with 300 scillings be slain he
must hand over the esne and three times his man- liability.
worth in addition ; and in the case of the freeman
payable for with 100 sciUings he must hand over the
esne and add one man worth in addition. That is to
say, the esne was in both cases to be handed over
and a mairworth for each hundred .sciUings of the
amount at which the person slain is paid for.
Now, I think, we must conclude that these clauses
were intended to make an innovation upon ancient
custom rather than to confirm it. And therefore it
may be well to compare with them the parallel
evidence of the laws of other tribes, as to the
responsibility of an owner for his slave's homicides.
Under the Welsh Laws (ii. p. 105) the liability of Under
the owner of a slave for his homicides was ap- custom
parentiy complete. complete.
If a bondman commit homicide of whatever kind, it is right
for the lord of the bondman to pay for the deed of his bondman
as for a murderer, for he is a murderer.
And this probably must be taken as the general
rule of tribal custom in its early stages.
In the laws of the Saxons and of the Anglii and
Werini the ancient German tribal custom was stiU
preserved. The owner of an animal or a slave was
liable for any injury done by either, very much as if
it had been done by himself (' Lex Sax.' xii. Ang.
and Wer. 16 and 52)".
But it would seem that Boman and Christian
feeling very early suggested that this was hard upon

470

Early Kentish Custom.

Then
made a
half- wergeld only, and
the slave
to be
handed over for
the other
half.

the innocent owner. Hence in some of the laws the
compromise was made that the owner should pay
only a AaZr-wergeld and hand over the offending
animal or slave instead of the other half.
That this innovation was not altogether accept
able to tribal feeling is shown by clauses in the
'Bactus III.' of the Alamannic laws. The whole
wergeld was to be paid by the owner if his horse, ox,
or pig killed a man (s. 18). But an exception was
made in the case of the dog. If a man's dog kiUed
any one, a half-vrerge\d (medium werigeldum) was to
be paid, and if the whole wergeld was demanded, aU the
doors but one of the house of the person making the
demand were to be closed and the dog was to be hung
up nine feet from the only one left open for ingress or
egress, and there it must remain till it feU from putre
faction. If it was removed or any other door was
used, the wergeld was to be returned (s. 17).
Grimm (' D. B.' p. 665) has pointed out that in the
Ostgotalaga (Drap. 13, 2) a similar archaic practice is
described when a slave had kiUed a man. The owner
of the slave under this law ought to pay the whole
wergeld, and if he did not do so the slave was to be
hung up at his (the owner's) house door tiU the body
putrefied and fell. Thus the same archaic method of
punishing the delinquent was retained in both cases.
But the significant point is that so long as the whole
wergeld was due from the owner it was at the
owner's door that the body of the slayer was to be
hung up, while when the half- wergeld only was to
be paid, the dog was to be hung up at the door of
the person who improperly demanded the whole
wergeld. Thus, as in so many other cases, the twelfth-

Laws of Elotha?re and Eadric.

471

century laws of the North . preserved the earlier
custom of the payment of the whole wergeld, while
the Alamanni, after migration into contact with
Boman and Christian civilisation, in their laws of
the seventh century modified the custom, at the
same time retaining the archaic method of forcing
compliance with the modification. It must be
remembered that every change which relieved the
innocent owner from liability, whoUy or in part,
robbed the kindred of the person slain of the whole
or the part of the wergeld.
The compromise of payment of the half-wergeld
and the handing over of the offending animal or slave
was not confined to the Alamannic laws.
In the Bipuarian Law xlvi. the animal which had
kiUed a man was to be handed over and received ' in
medietatem wirigildi ' and the owner was to pay the
other half.
In the Lex Salica the same rule was at first Som
Codex 1.
applied to the case of homicide by a slave or lset. of Lex
A half-wergeld was to be paid and the slave or last afterW'ai-ds
handed over for the other half.1 This was the rule 0™*sred
according to the Codex I. But in the later Codices, [™m tne
o . half-
VH. to X., and in the ' Lex Emendata,' the lord, if wergeld.
innocent, was allowed to get off altogether from the
half-wergeld and had only to give up the slave or
the bet. This further innovation seems to have
been connected with the Edict of Chilperic (circ. a.d.
574) and thus probably represented the result of

1 xxxv. 5. ' Si servus alienus
aut laetus hominem ingenuum
occiderit, ipse homicida pro
medietatem compositionis illius

hominis occisi parentibus trada-
tur, et dominus servi aliam
medietatem compositionis se
noverit soluiturum.'

472

Early Kentish Custom.

In the
Canons of
sixth
century the slave
was to be
given up
and
another besides.

In the
Burgun dian Law
slave to
be given
up and
the owner
to be free.

ecclesiastical influence ,at very nearly the date of the
earliest Kentish laws.
We have only to recur to the Canons of the Celtic
Church of Brittany and South Wales of the sixth and
seventh centuries, considered in the earlier part of
this volume, to recognise the hand of the Church
in these innovations upon earlier tribal custom.
They extended to Celtic as weU as to German
districts. In Canon 5 of the so-caUed ' Canones
WaUici ' the rule was laid down that ' if any master
should permit his slave to carry arms, and the slave
killed a freeman, the owner must hand over the slave
and another besides ' (supra, p. 108).
The half-wergeld here is omitted altogether, and,
as in the case of the Kentish freeman, two slaves are
to be given up instead of one.
These Canons were nearly contemporary with the
later Kentish laws, and the same stage of innovation
seems to have been reached in both. A stiU further
and final stage had been reached in the Burgundian
Law already quoted (supra, p. 124) in which in the
case of homicide by a slave, unknown to his master,
the slave was to be delivered up to death and the
master was to be free from liability. The parentes
of the slain person were to get nothing, not even the
slave, c because, as we enact that the guilty shall be
extirpated, so we cannot allow the innocent to suffer
wrong.' The whole process of change had taken
place in the Burgundian district by the sixth
century. But it would seem that in Kent the middle
stage only had been reached at the date of the laws
of Hlothaere and Eadric.
Evidence that the further stage had at last been

Laws of Hlothmre and Eadric. 473
reached in Anglo-Saxon law is perhaps to be found
in the nearly contemporary law of Ine (s. 74) which
enacts that if a theow-wealh slay an Englishman, the
owner shaU deliver him up to the lord and the
kindred or give sixty scillings for his life. Here no
further manworths are required. But possibly the
peculiar position of the theow-wealh may have some
thing to do with it, so that we ought not perhaps to
assume as certain- that the clause represented a still
further general innovation upon tribal custom beyond
that described in the Kentish clauses.
Beturning to the Kentish clauses and assuming Kentish
that their direct intention was to modify previous meantto
custom, we are now in a position fairly to judge what ™edi%
the previous rule may have been. vious rule:
Beasonmg from the analogy of other laws, it seems may have
most hkely to have been to make the owner pay a haif1-
half- wergeld of the person slain and hand over the ^^
esne for the other half — the stage of custom reached and 10°
•n • • t n • scillings.
in the Bipuarian Laws and Sahc Laws of Codex I.
And if this were in fact the former custom
previous to the enactment in these clauses, then
without departing from the correct literal reading of
the text it may be that the words in the parenthesis
in each clause may refer, not to the eorlcundman's
or the freeman's wergild — the word ' leod-ge\di ' is
not used — but to the amount hitherto payable in the
particular case of a man slain by an esne. The
300 and 100 sciUings may be the half-wergeld
hitherto payable, instead of which thenceforth the
owner of the esne is to pay three manworths or one
manworth in addition to handing over the esne.
If previous to the innovation the eorlcundman

474 Early Kentish Custom.
had been paid for in such a case with three hundred
shillings and the freeman with one hundred, the words
in their strictly correct literal meaning might perhaps
rightly be read thus : —
If any one's esne slay an eorlcundman, one who is [now] paid
for at three hundred scillings, let the owner [in future] give up the
slayer and add three manworths [of the esne] thereto.
If anyone's esne slay a freeman, one who is [now] paid for at
one hundred scillings, let the owner [in future] give up the slayer
and add one manworth [of the esne] thereto.
This reading of the clauses, putting emphasis
upon what is now the gild (pane f sie) — the three
and the one hundred sciUings — in contrast with what
the owner has in future to do, i.e. pay three man-
worths and one manworth instead of the three
hundred and one hundred sciUings in addition to the
handing over of the esne — seems to me more than any
other rendering to account for the insertion of the
parenthesis stating the amounts payable for the
eorlcundman and freeman. If the word leod-gylde
had been used it might have .been different. But I
am informed on the best authority that the words
gylde and gelde in the two clauses are not substantives
but used in an adjectival sense, and in this case they
would apply to a half-wergeld payable as correctly as
to a whole one.
Was 100 At the same time the mention of 100 sciUings, if
the half- the payment be a half-wergeld, may help to an
andgso the understanding of the medume leodgeld of 100 sciUings
medume mentioned in Ethelbert's Laws. It suggests that the
wergeld oo
of King medume wergeld was a modified or middle one which,
Ethel- ° . i7. I
bert's like the medium werigeldum and medium precium of
the mediasval Latin of the Alamannic and other laws,
had come to mean a half one. Berhaps, after aU, if

Laws of Hlothcere and Eadric.

475

we recognise clerical influence in the framing and
modification of the Kentish laws, the translation of
the Latin ' medium werigeldum ' by the Anglo-Saxon
' medume leodgeld ' is not very unnatural.
Before we leave the laws of Hlothsere and Eadric
there are one or two further clauses worth notice.
Clause 5 reminds us that, though scarcely men- System
i - , , , „ . ofoath-
tioned in these laws, the system of compurgation helpers.
was in force. A freeman charged with a crime has
to clear himself by the oaths of a number of ' free
sewda-men.' Clause 6 makes mention of the protection of a
woman by her kindred : —

Gif ceorl acwyle be hbbendum
wife "J bearne riht is ¦p hit ¦p
beam medder folgige ~) him mon
an his f sedering-magum wilsumne
berigean gesehe his feoh to heal-
denne off aet he . x . wintra sie.

6. If a husband (ceorl) die Position of
wife and child yet living, it is the wife-
right that the child fohow the
mother: and let that sufficient
guardian be given to him [the
child] from among his paternal
kinsmen to keep his property
[cattle ?] till he be ten winters
old.

These clauses, unimportant perhaps in them
selves, are useful as showing that behind the silence
of the laws tribal custom still lingered on, how
ever seldom and slightly it might be brought into
evidence as fresh circumstances might suggest new
clauses. There are also some clauses which are useful Mund-
as showing the continuance of the mund-byrds of changed.
king and ceorl of King Ethelbert's Laws, unchanged
in amount, a century later.
By s. 11, if a man uses abusive words to another
in any one's ' flet,' ' let him pay one scilling to him

476 Early Kentish Custom.
who owns the " flet " and six sciUings to him to whom
he said the words, and twelve scillings to the King.'
So also in s. 12, one sciUing is to be paid to the
owner of the ' flet,' six sciUings to the person
wronged, and twelve sciUings to the king. The six
scUlings to the person insulted or wronged is the
mund of the freeman or ceorl. Lastly, in s. 13 in
case of a slaying in a drinking bout : —

Gif man waepn abregde f aer
maen drincen -] f aer man nan yfel
ne deft scilling fan f e f flet age
] cyninge xii scill.
Gif -p flet geblodgad wyroe
forgylde fern maen his mund-
byrd -J cyninge 1. scill.

If a man draw a weapon
where men are drinking and no
harm be done, then a scilling to
him who owns the flet and xii
scihings to the King.
If the flet be stained with
blood, let him pay to the man
[who owns the flet] his mund-byrd
and 50 scihings to the King.

Mund- Thus we have again the mund-byrds of King Ethel-
the King bert's Laws : —
still 50 Of the King 50 scillings.
sciUings Of the ceorl 6 scihings.
and of the The crime of kiUing another in a drinking bout
is a breach of the mund of the owner of the ' flet ' as
well as a breach of the peace of the King.

V. THE LAWS OF KING WIHTR^ED, A.D. ' 690-696.
One more chance remains for further information
regarding Kentish wergelds, viz. in the ' Laws of
King Wihtrsed,' who became King of the Kentish
men about a.d. 690 and, according to Bede, died
a.d. 725. A century had passed since the Laws of
Ethelbert were enacted, in the time of St. Augustine.
Brihtwald was now Archbishop of Canterbury, and at
an assembly of Church and people ' the great men

Laws of Wihtra?d.

477

decreed, with the suffrage of all, these dooms, and
added them to the lawful customs of the Kentish men.'
These laws are mainly ecclesiastical both in their
origin and subject.
In the first two clauses the Church was declared Mund-
to be 'free from gafols,' and the mund-byrd of King and
the Church was declared to be the same as the both&o
King's, viz. fifty scilhngs— as in Ethelbert's Laws. sciUings,
° J D and so no
There is therefore no marked change in the Kentish change
currency, though by this time it must have been Kentish
almost entirely silver so far as any Kentish coinage ourrency-
was concerned.
Clause 5 introduces us for the first time in the
Kentish laws to the distinction between the gesithcund
and ceorlisc classes.

Gif faes geweoroe gesiocundne
mannan ofer fis gemot ¦p he
unriht named genime ofer cin-
gaes bebod -j biscopes 3 boca dom
se f gebete his dryhtne . c . scih.
an eald reht. Gif hit ceorlisc man
sie gebete . 1 . scill. . . .

When it happens to a gesith
cundman after this gemot that he
enters into unlawful marriage
against the command of the King
and the bishop and the book's
doom, let him make bot for it to
his lord with 100 scillings accord
ing to ancient law.
If he be a ceorlisc man, let him
make bot with 50 scillings. . . .

It would not do to conclude from this single
allusion to gesithcund and ceorlisc men that the
Kentish division of classes — eorlisc and ceorlisc — had
given way before the Wessex division of classes —
gesithcund and ceorlisc.
There had been no interval between this and the
last set of Kentish laws long enough to have made
likely any radical change in social conditions, and as
the ' ancient law ' alluded to was probably ecclesiasti
cal and not especially Kentish, either in its origin or

478

Early Kentish Custom.

The posi
tion of the
freedmanunderKentish
custom.

its terms, it would not be wise to build anything upon
the use of the word ' gesithcund ' beyond recognis
ing the natural tendency of neighbouring peoples
under the same ecclesiastical influence to approximate
in phraseology especiaUy in regard to matters of
general ecclesiastical interest.
Clauses which follow regulating the penalties for
work on Sundays, or neglect of baptism, or a ceorl's
making offerings to devils without his wife's know
ledge, or a man's giving flesh meat to his famUy on
fast days, do not interest us in this inquiry further
than as revealing lingering traces of paganism and
the ecclesiastical character of these laws of Wihtrsed.
There are, however, a few clauses which inci
dentally come within the lines of our inquiry.
Clause 8 is especiaUy interesting as showing that
when freedom was given by a lord to his man and
he became folkfree, still, even though he left the
district, his inheritance, his wergeld, and the mund of
his family remained with the freedom-giver.

Gif man his maen an wiofode
freols gefe se sie folc-fry. freols-
gefa age his erfe aende wer-geld 3
munde fare hina sie ofer mearce
f asr he wihe.

If any one give freedom to his
man at the altar, let him be folk-
free ; let the freedom-giver keep
the heritage and wergeld and
the mund of his family, be he
over the march wherever he will.

His wer
geld goes
to his
lord.

Here tribal custom asserts itself. The freedman,
though freed at the altar, is to be folkfree, and yet,
although folkfree and able to go wherever he will,
he cannot inherit, because he is nobody's heir. He
had no free parents from whom to inherit. His lord
inherited what his unfree man might leave behind
him. The freedman's wergeld if he were slain still

Laws of Wihtrosd.

479

went to his lord, for he had no free kindred to claim
it. His family remained in the lord's mund unless
they also had been set free.
These points were doubtless all incident to the
position of a newly made freedman under Kentish
custom, and this enactment was probably needful only
to make it clear that freedom given at the altar,
whatever churchmen might think, was not to modify
the customary rules incident to freedom-giving. The
evidence of the clause is, however, valuable because
for one moment it accidentaUy lifts the veil and shows
that Kentish tribal custom was in these matters much
the same as we have found tribal custom elsewhere,
and it is particularly valuable as direct evidence that
there was a class of freedmen under Kentish custom
as everywhere else.
There are also the foUowing clauses on oaths.

Biscopes word J cyninges sie
unlaegne buton aeoe.
Mynstres aldor hine caenne in
preostes canne.
Preost hine claensie sylfaes sot5e
in his halgum hraegle aatforan
wiofbde fus cweoende ' Ueritatem
dico in Xpo, non mentior.' Swylce
diacon hine claensie.
Cliroc feowra sum hine claen
sie his heafod-gemacene J ane
his hand on wiofode oore aet-
standen aft abycgan.
Gest hine claensie sylfes a8e
on wiofode swylce cyninges f eng.

16. A bishop's and a King's
word is unimpeachable without
an oath. 17. A ' Minster's ealdor '
clears himself in the same way as
a priest. 18. A priest clears himself by
his own declaration in his holy
garments before the altar, saying
1 1 speak the truth in Christ, I do
not lie.' And so also does the
deacon. 19. A cleric shall clear him
self as one of four of his like ;
with one hand on the altar, the
others standing by and accom
panying the oath.
20. A stranger (gest) shall
clear himself by his own oath at
the altar, and in the same manner
as a 'King's thane.'

Clauses
on oaths
of dif
ferent persons.

480

Early Kentish Custom.

Ceorlisc man hine feowra sum
his heafod-gemacene on weofode
~) f issa ealra aS sie unlegnae. . . .

21. A ceorhsc man shah clear
himself with four of his like at
the altar, and the oath of ah these
shah be unimpeachable. . . .

Under
clerical
influence the single
oath of
thestranger
to be
taken as
good.

Clauses as to
theft like
those in
Ine's laws.

These statements regarding oaths, like other laws
of Wihtrged, betray their ecclesiastical origin, and
following directly after the imposition of penalties for
what may be called ecclesiastical sins, very difficult
of proof, seem to have been inserted with special
reference to them. They are interesting, however, as
reminding us again that the system of oath-helpers
was not absent from Kentish custom.
Section 20 of this clause is also interesting, which
places the stranger (gest) — may we not say the ' King's
guest ' ? — in the same position as the ' King's thane '
as to the validity of his single oath. Both seem to
be specially under the King's protection : in the case
of the King's thane, on account of his official or
military position ; in the case of the stranger, probably
because of the absence of his kindred. The King
being in the place of kin to the stranger, his single
oath is accepted.
These laws end with clauses referring to theft
more or less closely resembling those so prominent
in King Ine's Dooms.
They state that a thief slain as a thief was to be
without wergeld. If a freeman were caught in the
act of thieving, the King might either kill him, or seU
him over sea, or release him on payment of his
wergeld. He who should seize and hold him was to
be entitled to the half-wergeld, or if he were put to
death to seventy sciUings. A man coming from far or a
foreigner, when off the public way, who should neither

Division of Classes.

481

caU aloud nor blow a horn, was to be taken to be a
thief, and put to death or redeemed by a wergeld.
The last clause resembles Ine s. 20 so closely as
to suggest a common origin.

(Wihtraed, 28)
Gif feorran cumen man offe
fraemde buton wege gange J he
fonne nawSer ne hryme ne he
horn blawe for Seof he bid to
profianne offe to sleanne offe to
alysenne.

(Ine, 20)
Gif feor cuman man oooe
fremde buton wege geond wudu
gonge ~] ne hryme ne horn blawe
for oeof he bid to profianne oSSe
to sleanne oStSe to alysanne.

The close resemblance between these clauses con
firms the suggestion that the expression ' gesithcund '
in the Kentish laws of Wihtraed may have been
borrowed from Wessex. Nowhere else than in these
contemporary laws of Ine and Wihtraad does the term
gesithcund appear, except in the fragments of Mer
cian law, which may thus belong to the same period.

VI. THE DIVISION OF CLASSES UNDER KENTISH CUSTOM.
We have now examined the Kentish laws especially
regarding the amount of the wergelds and mund-byrds.
Although we may not have arrived at absolute
certainty, yet some light may have been thrown upon
the important matter of the division of classes.
So far as the amounts of the wergeld are con- Mund-
cerned, the contrast was between the eorl and the K^ng^ °
freeman, the wergeld of the eorl being three times ^jand
that of the freeman. But as regards the mund-byrd
the contrast was between eorl and ceorl. The mund-
byrds were : — •
King . . .50 Kentish scillings
Eorl ... 12
Ceorl ... 6 „
I I

482 Early Kentish Custom.
There must evidently be either identity of meaning
or much overlapping in the terms freeman and ceorl.
Otherwise the ceorl would be without a wergeld and
the freeman without a mund-byrd.
And yet, on the other hand, there was probably
some reason why the particular words used were
chosen in the several clauses, and to a certain extent
it may not be far to seek.
The ceorl So far as the word ceorl had a special sense, it
^atshaamau meant the married man,1 the husband with a horne-
andSfletld stea(l and household, like the North-country hus-
andsohad bandman with his husbandland. In this special
byrd. sense every ceorl may have been a freeman, but
every freeman may not have been a ceorl. Hence in
the clauses as regards mund-byrd the contrast is
between the eorl and the ceorl. Both were men
with homesteads and households. Unless they had
persons under their ' mund ' they could not have had
corresponding mund-byrds. The freeman who did
not happen to be a man with a homestead and house
hold could have no mund-byrd, because he had no
precinct within which his peace could be broken, and
no household under his protection. But he could
have a wergeld.
So, again, in the clauses quoted relating to in
juries done to servants in the Laws of Ethelbert : —
14. If a man lie with an eorl's birele, let him make bot with
xii scillings. 16. If a man lie with a ceorl's birele, let him make bot with
vi scihings. If with a theow of the second class, 1 sceatts ; if with
one of the third class xxx sceatts.
25. If any one slay a ceorl's hlafaeta, let him pay bot with vi
scillings.

1 ' Ceorlian,' to marry a husband ; ' wifian,' to marry a wife.
Bosworth, sub voce.

Division of Classes. 483
The ceorl in this contrast is again a husbandman
with a homestead and household and with bireles
and theows and hlafastas under his roof or in his
' ham.' Wherever in the Kentish laws the word
' ceorl ' is used in any other sense, I think the meaning
is confined to that of the married man — the husband,
as in the phrase ' husband and wife.'
So regarded, the division for purposes of mund-
byrd into eorlisc and ceorlisc classes was natural,
and so also, for purposes of wergeld, was the dis
tinction between eorl and freeman. As regards
the wergeld, we may consider the terms ceorl and
freeman as practically interchangeable, inasmuch as
every ceorl was certainly a freeman, and the un
married freeman was probably a cadet or member of
the household of some eorlisc or ceorlisc man.
Continental society included everywhere, as we
have seen, such classes as the Boman liti and liberti
composed of strangers and freedmen who had not so
far risen in the social scale as to have fully recognised
rights of inheritance and whose wergeld never was of
the same amount as that of the full freeman. It is
in connection with such classes that the tribal distinc
tion of blood came in. If for the full freeman we
were to substitute the word tribesman, with all the
background of hyndens of kinsmen to fight and to
swear for him involved in the term, then from the
same point of view we must expect to find in Kent, as
everywhere else, strangers in blood below the tribes
men, like the aillts and aUtuds and taeogs of the
Cymric Codes, the fuidhirs of the Brehon Laws, if not
the liberti and liti of the Gallo-Bomans, or, perhaps
1 1 2

484 Early Kentish Custom.
still more nearly to the point, the leysing classes of
the Norse Laws.
The We have already found -incidental mention of the
freedman Kentish freedman. He cannot after enfranchisement
resembled have been classed as an esne or a theow. There
the Norse WOuld seem to be no other class mentioned to which
leysing. he could belong, unless it might be that of the lasts
of Ethelbert's Laws.
It is worth while, therefore, to recur to the single
clause in Ethelbert's Laws aheady quoted respecting
the lasts and to examine it more closely. Within the
compass of its few words there may perhaps be found
evidence connecting the status of the Kentish last
with what we have learned of the status and condi
tions of the Norse leysing.
26. If a man slay a 1st of the best class, let him pay 80 scil
lings ; if one of the second class, let him pay 60 scihings ; of the
third, let him pay 40 scihings.
The clause does not mention to whom the pay
ments are to be made, whether to the last himself or,
as in the case of the freedman, to his late owner or
lord. But the payments are not called leodgelds as
are the wergelds of freemen.
Jws Looking to the payments themselves they are
in both graduated for three classes of lasts. There were
also, under Norse custom, three classes of leysings
gradually growing by successive steps towards a higher
grade of freedom as kindreds grew up around them
and became more and more nearly perfect tiU at last
the ninth generation from the first freedman became
fully free. Why may not the three grades of Kentish
lasts have been doing the same ?
Let us compare the amounts of the payments for

cases

Division of Classes. 485
the slaying of the three classes of Kentish lasts with
those for the three classes of Norse leysings.
We have seen over and over again that the
Kentish scilling regarded as twenty sceatts was an
ore or a Boman ounce of silver. Therefore the
Kentish payments, stated in ounces of silver, were as
foUows : —
Best class of last  80 ounces of silver
Second class  60 „ „
Third class  40 „ „
The Norse ore was also in wheat-grains a Boman
ounce of silver. The wergelds of the three classes of
leysings in the Norse laws were as under : —
Frialsgiaf! or newly made freedman
Leysing after making ' freedom ale '
Leysinjia-son or highest rank of <
leysing whose great-grandfather
was a leysing 1
So that the wergelds of the three classes of And the
Kentish lasts corresponded exactly in amount with S.S
those of the three classes of Norse leysings, when
reckoned both in silver.
We may further compare these payments for the
Kentish lasts with those for the freedman of the nearly
contemporary Bavarian laws. They are stated in gold
solidi of three tremisses, and the Kentish solidus was
of only two tremisses. We have seen that the Bavarian
freedman was paid for with forty solidi, i.e. sixty
Kentish scilhngs. The payment thus corresponded
with that for the Kentish last of the second class.
These correspondences are unexpected and very
significant, but the significance is made still more
1 Supra, p. 259.

. 40

ores

of silver

. 60

>,

,,

. 80

,)

,,

486 Early Kentish Custom.
The important by the clause in the Laws of Wihtrasd
therein describing the position of the newly made freed-
°^g.1'°1wth1 man under Kentish custom. The description of his
ot kindred. x
position might almost be taken as a description of
the ' frialgiafi ' or newly made leysing of the Norse
laws. Under Kentish law the freedman was to be
folkfree, but ' the freedom-giver was to keep the
heritage and wergeld and mund of his family, be he
over the march wherever he will.' This was, as we
have seen, almost exactly the position of the Norse
leysing before he had made his freedom ale. He had
as yet no kindred to swear and to fight for him. He
was stiU under the mund and protection of his lord.
His descendants could only obtain the protection of
a kindred and become whoUy free from the thyrmsl
of the lord, when in the course of generations a
kindred had grown up graduaUy around them.
So too, as we have seen, under the Bavarian laws
the freedman's wergeld went to his lord.1 Under the
Frisian law the wergeld of the litus went to his lord.2
Under Bipuarian law even the ' homo denariahs '
— the freedman who became a Frank with a full
wergeld — was recognised as having at first no kindred.
If he had no children, his property went to the fisc.
And it was not till the third generation that his
descendants had full rights of inheritance.3 We
have already found abundant evidence of the con
tinued force of tribal custom and tribal instincts
in regard to the importance of kindred while con
sidering the meaning and function of the hyndens in
connection with the twelve-hynde and twy-hynde

Supra, p. 176. " Supra, p. 199.
3 Supra, p. 169.

The Kentish Wergelds.

487

classes of the Anglo-Saxon laws. These remarkable
correspondences between the position held by the
lasts in Kent and that of the leysings and freedmen
and liti of the Continental laws, without our making
too much of them, may fairly be taken as additional
evidence of the tenacity of tribal custom in these
matters.1

VII. THE AMOUNT OE THE KENTISH WERGELDS.
Once more we return to the amount of the Probable
wergelds of the Kentish eorl and freeman. wergelds
We have seen reason to believe that the payments eorl 60°-
A J freeman
of 300 and 100 scillings of the laws of Hlothasre and 200,
Eadric were half-wergelds, and that the full wergelds scillings.
were 600 and 200 scillings.
If they may be so considered they are at once put
on line with the Frankish wergelds. The threefold
wergeld of the eorl becomes evidently due to his
noble birth or official position. And, if the Kentish
and Frankish solidi had been alike, the similarity of
the wergelds would have been complete.
The wergelds of the Frankish group of laws were As in the
c 1 . 1 ' ,• 11 ' Frankish
found to be as follows : — laws.
Lex Sahca, Graphio or ingenuus in truste Begis
Frank or Barbarian hving under Salic lav\
Lex Bipuariorum, Comes &c. in truste Begis .
Ingenuus 
Lex Anghorum et Werinorum, Adalingus
Liber 

600 solidi)
200 „ j
600
200 600200

Lex Chamavorum, Homo Francus  600
Ingenuus  200

1 In the Bavarian and Saxon
laws the litus was paid for at
one fourth the wergeld of the
liber. The inference from this

might strengthen the view that
the Kentish wergeld of the ceorl
could hardly be as low as 100
scillings.

488

Early Kentish Custom.

Confirmed by com
parison with the
King'smund-byrd.

In all these cases the wergeld of the Boyal official
or person in high rank is threefold that of the liber
or ingenuus.1 Confining attention now to the position of the
Kentish freeman, further confirmation of the view
that his wergeld was 200 Kentish scilhngs may be
derived from a comparison of the King's mundbyrd
with his wergeld, and the corresponding Continental
payments pro fredo with the wergelds of the liber and
ingenuus of the Continental laws.
The Kentish mundbyrd of 50 Kentish sciUings
was one fourth of the Kentish freeman's wergeld if
200 Kentish scillings.
The Mercian mundbyrd of five pounds of sUver
was one fourth of the Mercian wergeld of 1200 scU-
lings of four pence, or twenty pounds.
The Wessex mundbyrd of five pounds would be
one fourth of the Wessex wergeld proper if the latter
might be looked upon as the same as the Mercian
with the mundbyrd added.2
The Alamannic and Bavarian payments pro fredo of
40 solidi were one fourth of the Alamannic and
Bavarian wergeld of 160 sohdi.
And Brunner 3 and others consider that, although
the payment pro /raft? was sometimes an extra payment,
the 200 solidi of the Frankish wergeld equaUed 160
solidi with one fourth added pro fredo.

1 I adhere to this view after
careful consideration of the elabo
rate argument in the Die Gemein-
freien der Karolingischen Volks-
rechte, von Philipp Heck (Halle,
1900), in reply to the criticism by
H. Brunner in the Savigny-Stif-

tung fiir Bechtsgeschichte, xix
Band, 1899.
s 1200 scihings of id. with
one fourth added = 1200 scillings
of 5d. 3 Deutsche Bechtsgeschichte,
i. 225-6.

The Kentish Wergelds. 489
Now, if instead of holding the Kentish freeman's
wergeld to be 200 Kentish scillings we were to take it
to be the medume wergeld of 100 scillings, we should
destroy the correspondence of the King's mundbyrd
with the wergeld, and make the mundbyrd half the
wergeld instead of a quarter : unlike what it was in the
other laws. This hardly seems a likely supposition.
We get still further evidence if we compare the And also
payments for the eye, hand, and foot in the Kentish ment &»"
and Continental laws. We have seen that the andfoot.d'
Kentish payment was 50 scillings, i.e. the same as
the King's mundbyrd and one fourth of the wergeld
of 200 sciUings. In the Alamannic and Bavarian
laws and in those of the Chamavi the payment for
these, like the payment pro fredo, was one quarter of
the freeman's wergeld. In the Frankish laws it was
one half. But the reason of this is, not that either
the Frankish payment pro fredo or the wergeld is
less than in other laws, but that the payment for
the eye, hand, and foot is greater. The Frankish
payment for the eye, hand, or foot was 100 solidi of
three tremisses, i.e. half as much again as the Kentish
freeman's wergeld would be if only 100 Kentish
sciUings of two tremisses ; which again seems unlikely.
At first sight the Wessex payments for the eye, hand,
and foot present an anomaly. The Wessex twelve-
hynde wergeld of 1200 Wessex scillings of five pence
at a ratio of 1 : 10 corresponds, as we have seen, with
the Frankish freeman's wergeld of 200 solidi. The
payment for the eye, hand, and foot in King Alfred's
Laws is 66| Wessex sciUings, i.e. only one eighteenth
of the twelve-hynde wergeld. But the explanation no
doubt is that in the Laws of King Alfred the payments

490

Early Kentish Custom.

Kentishfreeman'swergeldmostlikely 200
Kentishscillings,or 4000
sceatts.

Arch bishop
Egbert'spriest'swergeldalso 4000
sceatts —
i.e. 200
ounces of
silver or
Mina
Italica
of gold.

for injuries are stated for the twyhynde-m&ris grade,
those for the eye, hand, and foot being one third of
the twyhyndeman's wergeld of 200 Wessex sciUings.
On the whole, therefore, these considerations seem
to strengthen the supposition that the Kentish freeman's
wergeld was 200 Kentish scillings. That the Kentish
wergeld should differ from that of Mercia and Wessex
need not surprise us, seeing that we started with the
warning that we should find it so as regards both the
bar ones and villani. To the writer of the so-called Laws
of Henry I. the eorl was no doubt the baro and the
freeman or ceorl the villanus of Norman phraseology.
And we need not wonder at his confusion if he had
nothing but the laws to guide him. It is necessary,
however, to look at the question of the wergelds
from a broader point of view than his could be.
It must not be forgotten that the Continental
wergelds of the Merovingian period were aU stated in
gold solidi. The first emigrants into Britain must have
known this perfectly well. Kentish moneyers coined
gold tremisses, and when they afterwards coined
silver it was in silver tremisses of the same weight,
which earned the name in England of ' sceatts.'
Any exact comparison of Enghsh and Con
tinental wergelds must obviously be dependent upon
the ratio between gold and silver.
The Kentish scilling of two gold tremisses at
1 : 10 was reckoned in the Laws of Ethelbert as equal
to 20 sceatts — i.e. to the Boman ounce — and the
wergeld, if of 200 scillings, was thus, as we have seen,
a wergeld in silver of 200 ounces or 4000 sceatts. We
have seen also that Archbishop Egbert claimed for his
priests a wTergeld of 200 ounces of silver, which thus

The Kentish Wergelds. 491
would accord exactly with the Kentish wergeld of 200
sciUings. It might almost seem that he may have con
sulted his colleague the Archbishop of Canterbury
and fixed his clerical demand in accordance with the
Kentish wergeld rather than with that of Wessex or
Mercia. Nor was there anything unnatural or abnormal
in the Kentish wergeld of 200 ounces of silver, inas
much as 200 Boman ounces of silver at a ratio of
1 : 10 would equal the Mina Italica of twenty
Boman ounces or of two ancient Boman pounds of
gold. We may therefore with confidence, but without
claiming certainty, fairly state the Kentish wergelds
in Kentish sciUings and sceatts, thus : —

Kentish

Kentish

scillings Sceatts

wergelds

Eorl

. 600 (possibly 300 ?) = 12,000

Freeman .

. 200 (possibly 100 ?) = 4,000

Last (1) .
80 . . . = 1,600
.. (2) • ¦
60 . . . = 1,200
„ (3) . .
40 . . . = 800
And when put together in this way the proportion
between the wergeld of the freeman and that of the
lasts becomes important. In the Norse laws the
leysing's wergeld was one sixth that of the hauld or
odalman. In the Bavarian and Saxon laws the
wergeld of the litus was one fourth that of the free
man. Anything like these proportions in Kent
would make a wergeld as low as 100 scillings for
the freeman very improbable.
Lastly, perhaps it may be fair to the reader to recur
once more to the question of the Kentish scilling. If
any doubt should remain as to whether we are right
492 Early Kentish Custom.
The in regarding the sceatt as the silver coin of that name,

sceatts

could not twenty of which went to the Boman ounce until it
farthings!1 was superseded by the penny of Offa and Alfred,
surely that doubt must now be dispelled. For if,
according to the view of Schmid and others, the sceatt
were to be taken as a farthing or quarter of a sceatt,
the correspondence of Kentish with Continental
wergelds and payments pro fredo would be altogether
destroyed. The eorl's triple wergeld at a ratio of
1 : 10 would be only one sixth (and if 300 scilhngs
only one twelfth) of that of the Frankish noble or
official, while the Kentish freeman's wergeld would be
reduced to one sixth (or if 100 sciUings to only one
twelfth) of that of the Continental liber or ingenuus.
One perhaps must not say that such a result would
be impossible. But would it be a likely one ? We
should have to suppose that the Jutish chieftain,
perfectly familiar with the Continental wergeld of the
freeman as 200 or 160 gold solidi, equated by long
tradition with the round number of 100 head of
cattle, upon settlement in Kent reduced the wergeld
of the freeman to one sixth or one twelfth of what it
was in the country he came from. From what we
know of the tenacity of tribal custom everywhere,
especially as regards the amount of the wergelds, it is
difficult to conceive of his doing so.
VIII. RESULT OF THE KENTISH EVIDENCE.
We are now in a position to take a broader view
of the wergelds, Continental, Kentish, Wessex, and
Mercian. To the incidental mention of the fact that the
Kentish freeman's wergeld, if 200 Kentish sciUings,

The Kentish Wergelds. 493
equalled the gold Mina Italica may be added the The
further incident that it was equal to 100 ' sweetest wTssex,'
cows ' of the Alamannic laws. Whether accidental a?d .
Mercian
coincidences or not, these facts bring us back to the wergelds
point with which this inquiry started, viz. the wide- brought
spread normal wergeld of 100 head of cattle and its ^ the
very general traditional equation with a gold mina. Con™alen
The main facts elicited as to the amount of the tal wer-
wergelds in the course of this inquiry are these. 200 and
At the date of the Kentish Laws and generally soiid1°or
during the seventh century we find three wergelds in ^ °^^
use in England for the freeman : —

The Wessex wergeld of 6000 sceatts at 1 : 10 = 600 gold tremisses
ut ¦ Aonn fat 1:10 = 480 „
„ Mercian „ 4800 „ {atl:12 = 400 ^ [[
„ Kentish „ 4000 „ at 1:10 = 400 „
And on the Continent we find the two wergelds : —
Frankish .... 200 solidi = 600 gold tremisses
The other . . . . 160 „ =480 „
Now, in the fairly contemporary laws of the Bipu
arian Franks, and of the Burgundians, the traditional
values of animals we have found to be stated as
follows : —
Ox  2 solidi = 6 gold tremisses
Cow  1 solidus = 3 „ „
And in the nearly contemporary Alamannic laws the
traditional values were : —
Best ox  = 5 g°ld tremisses
Medium ox and sweetest cow . . = 4 ,, „
Within the range of these variations in the ratio
between gold and silver, and in the local value of

494 Early Kentish Custom.
The dif- animals, there seems to be ample room and reason for
covered the variations in the money values of the wergelds.
between (!) 1Q0 °xen of 6 tremisses (i.e. 600 tremisses)
so^ and equal the Frankish wergeld of 200 gold sohdi, and at
i : 10 and 1 : 10 the Wessex wergeld of 6000 sceatts.
1 : 12. v (2) A long hundred of 120 cows of 4 tremisses
(i.e. 480 tremisses) would equal the wergeld of 160
gold solidi, and at 1 : 10 the Mercian wergeld of
4800 sceatts.
(3) 100 cows at 4 tremisses (i.e. 400 tremisses)
make the Kentish wergeld of (if we are right) 200
Kentish scillings of 2 tremisses, and at 1 : 10, 4000
sceatts. If we change the ratio to 1 : 12, then a
Kentish wergeld of 100 cows of 4 tremisses would in
silver equal the Mercian wergeld of 4800 sceatts. In
other words, the difference between the Kentish and
Mercian wergeld may be explained, either as one
between 100 and 120 cows, or, the number of cows
remaining at 100, between the ratios of 1 : 10 and
1:12. There is thus in these fairly contemporary values of
Western Europe, in the seventh century, or within the
Merovingian period, so obviously room for the varia
tions in the wergelds that, whether as to origin the
differences may be of historical interest or not, at any
rate for our present purpose we are fairly warned by
the general coincidence in the wergelds not to make
too much of the differences.
xentish The Kentish laws, therefore, lead us with some
and Th" confidence to recognise the practical identity of the
hyndeman wergeld of the Kentish freeman with that, not of
= Conti. the Wessex ceorl, but of the twelve-hyndeman.
freeman. We have been led cautiously step by step to this

The Kentish Wergelds.- 495
result, and, whether the problem raised by it be
capable of solution or not, it is important that it
should be fairly stated and considered. Even if the
Kentish freeman's wergeld was only 100 Kentish
sciUings, it would more nearly correspond with the
six-hyndeman's wergeld than with that of the Wessex
ceorl. On the other hand, the wergelds of the Kentish
lasts are very fairly on a level with that of the Wessex
ceorl. Taking an average between the second and
third class of lasts the correspondence would be exact.1
If, therefore, the wergeld of the Kentish freeman Kentish
may be regarded as practically equivalent to that thetwy-
of the Continental liber or ingenuus on the one hand, I^caaa
and to that of the twelve-hyndeman of the Anglo-Saxon fa°nij^n
laws on the other hand, and if that of the Kentish man-
last was like that of the Norse leysing and of the
twy-hyndeman, then once more it becomes natural
and right, and in accordance with ancient custom,
that in the Compact between Alfred and Guthrum the
twelve-hyndeman should be made ' equally dear '
with the Norse hauld, and so with the liber or
ingenuus of the Continental laws, while the twy-
hyndeman should be held ' equally dear ' with the
Danish leysing.
1 60 + 40 Kentish scillings = I 1000 sceatts = 200 Wessex scil-
1200 + 800 scsetts. The average I lings of 5 scSetts.

Bearing of
the results
upon the
division of
classes and the
character
of hold
ings.

The
amount
of wer
gelds the
main clue.

The
general correspon
dence in
wergeldsthrough
outWesternEurope.

CHABTEE XV.
GENEBAL CONCLUSIONS.
Befoee concluding this Essay it may be weU in a
final chapter to consider its results in their bearing
upon the conditions of early Anglo-Saxon society, and
especially with regard to the division of classes and
the character of the holdings.
The object has been to approach these difficult
questions from the point of view of tribal custom.
The main clue to an understanding of the division
of classes has been the amount of the wergelds.
The trouble taken to arrive at a correct knowledge
of the currencies in which the wergelds were paid,
tedious as it may have seemed to the reader, will not
have been thrown away if it has led to the recognition of
the fact that there was a very general correspondence
in the amount of the wergelds tenaciously adhered
to by the tribes of Western Europe, whether remain
ing in their old homes or settled in newly conquered
countries. The amount of the wergelds was not
seemingly a matter of race. Cymric and German
customs were singularly similar.
If the Irish eric fine formed an exception, Irish
tribal custom nevertheless had many things in
common with Cymric and German custom in other
respects.

Evidence of Wergelds. 497
It was from a study of the wergelds and the rights The soii-
and liability of relatives in their receipt and payment thekmd-
that some idea was gained of the solidarity of the V^J°^'
kindred under tribal custom. And this solidarity of with.
the kindred was found to be closely connected with holdings.
the family character of tribal land-holdings, of which
the Cymric gweiy was a typical example. Where
direct evidence of this family element was wanting
the liability of the kindred for the wergeld remained
as an indication that it once had existed.
In reviewing the evidence of these matters and The
attempting to bring the results to a focus, we begin wergeki of
with the fact that with comparatively few exceptions go^f0^
the normal wergeld of the full or typical freeman was x^° h?ad
oi ent bis
everywhere so large — 200 gold solidi, the heavy mina
of gold, traditionally representing 100 head of cattle.
This wergeld was too large by far for the individual
slayer to pay, and possible only as a payment from
one group of kindred to another.
We have seen reason to infer from the Kentish, Tbe
Anglo-
Wessex, and Mercian wergelds that the Anglo-Saxon Saxon
tribes shared in these traditions, and, so to speak, brought3
brought their wergelds with them into Britain. And ^ them
we have found that Anglo-Saxon custom as regards Brhain.
the wergelds was substantially similar to that of the
Continental tribes.
From Beowulf we learned that, as there could be No feud
no feud within the kindred, a homicide within the within8the
kindred could not be avenged or compounded for. kmdrei1-
There was no galanas or wergeld in such a case under
either Cymric or German custom, and evidence was
found in the so-called Laws of Henry I. that it
had been so also under Anglo-Saxon custom. Up to
Iv K

498

General Conclusions.

Wergeldspaid and
received by pater
nal and
maternalrelations.

The half
wergeld
of strangersin blood.

the time of the Norman Conquest the punishment of
parricide was practically left by the lawTs to the
spiritual jurisdiction of the Church (supra, p. 335).
The principle which required both paternal and
maternal relations to join in the payment and receipt
of wergelds, and nearly always in the proportion of
two thirds and one third, was also common to
Cymric and German tribes. This principle depended
upon a view of marriage likewise common to both.
A blood relationship was estabhshed as regards chil
dren of a marriage, while husband and wife for many
purposes remained in their own kindreds. There
being no blood relationship between husband and
wife, the husband's kindred alone were liable for his
crimes and the wife's alone for her crimes, and
neither the husband nor the wife received any portion
of the other's wergeld or was liable for his or her
homicides. Such was the custom under the Cymric
codes and the laws of the Bretts and Scots, and Anglo-
Saxon custom as described in the so-caUed Laws of
Henry I. was similar.
The tribal feeling which allowed tribesmen and
strangers to live side by side under their own laws,
and made the Salic and Bipuarian Franks award a
full wergeld to tribesmen of allied German tribes, while
it gave only a half wergeld to the Gallo-Boman pos
sessor who was not of their blood, was, it would seem,
brought with the invading tribes into Britain.
Danish and English tribesmen were allowed to
live side by side under their own laws and acknow
ledged as ' equally dear,' with a similar wergeld, while,
at all events in the cases which come under notice,
complete strangers in blood were awarded only a
half wergeld as in the Continental laws.

Evidence of Wergelds. 499
We have not attempted to settle the question how
far there was a Bomano-British population left in the
towns, but we have found incidental traces and hints
that in Northumbria, Wessex, and Mercia there were
' wilisc ' men — Welsh or British — who had only a
half wergeld, being treated as strangers both in this
respect and also as regards the substitution of the
ordeal for the oaths of kindred (p. 403).
The principle that a man who could not bring to The 01-
his protection the oath of his kinsmen must be brought aitema-
to the ordeal was one of widely extended tribal oathsof e
custom. And it was emphasised by the adoption of kinsmen-
the ordeal as a Christian ceremony solemnly performed
in the churches under both Frankish and Anglo-Saxon
law. There can be little doubt that in the solidarity Tbe man
of the kindred under tribal custom we have to do kindred
with the strongest instinct which everywhere moulded aed^n-
tribal society. So far as it had its way and was not g^e°"ne
confronted by more potent forces it must have almost else's
t • • j? i land-
necessarily ruled suchmatters as the division of classes,
the occupation of land, and the modes of settlement.
When we inquire into the grades of society under
tribal custom they seem everywhere to have their
roots in the principles of blood relationship. A man
who has no kindred to protect him needs and seeks
the protection of a chieftain or lord. By the force
of tribal gravitation he sinks into the dependent con
dition of living upon another's land.
Whether he be a freedman who has risen from the
rank of the theow or thrall, or a free tribesman of low
position, or one of a conquered race, or a stranger
immigrant, and whether he be cottier or the holder
Ii2

500

General Conclusions.

The twy
hynde
class was
the depen
dent class
of gafol-
geldas,with a
lower wergeld.

The twy
hynde
class were
tjuated.

of the typical yardland, until in the course of genera
tions a kindred has grown up around him, he remains
in the dependent condition. He is indeed a freeman
as compared with the theow or thrall, but when
Alfred and Guthrum make their compact and agree
that Dane and English shaU be reckoned as equally
dear at the normal wergeld of the full freeman it is
not of the dependent class they are thinking. They
give to this class and to the Danish leysing or newly
made freedman a twy-hynde instead of a twelve-
hynde wergeld.
It might at first sight be supposed that this twy
hynde condition of the dependent class in England,
so far as it may have included Anglo-Saxons, must
have been the result of degradation in social status
between the first settlements and the time of King
Alfred, but we have sought in vain for evidence of an
earlier higher position in the Laws of King Ine. And,
on the whole, even when regarded solely from a tribal
point of view, it does not seem unlikely that strangers
in blood and freedmen and dependent foUowers of
the conquering chieftains should find themselves after
conquest and settlement in the economic condition of
tenants and gafolgeldas on the lands of protecting
lords. Nor would it be strange that, when in a new
country and under other influences this uniform
dependent economic condition had once become a
general fact, the whole class, in spite of variety of
origins, should find itself marked by a twy-hynde
wergeld. It does not follow, however, that because in the
compact between Alfred and Guthrum the twy-hynde
class were reckoned as equally dear with the Norse

The Norse Leysing. 501
leysing that the Anglo-Saxon ' ceorl who sits on With the
gafol-land ' was generaUy in as low a social position leysing.
as the Norse newly made freedman. It is enough
that according to the evidence, he was a dependent
tenant, let us say, under the lordship of a twelve-
hynde man or if settled upon royal demesne of some
gesith or official of the king.
StiU it may be well to look once again at the
position of the Norse leysing, because, after all, it is
with the leysing that the Anglo-Saxon twy-hynde
gafolgelda was equated in a compact made after
King Alfred's victory, and so when the two chieftains
seemed to be treating on equal terms. Surely King
Alfred was not intending to degrade the Anglo-
Saxon dependent class. Fresumably he was making
ii good bargain for them.
The early Norse laws were settled long after the The low
date of this compact, upon the conversion of South 0f the'0"
Norway, and, as in other cases, they were framed with leysmg-
the express purpose of making room in the legal
system for the Christian Church and so in some
sense with its sanction. And yet so deep was the
gulf between classes even then that a certain portion
of the churchyard was set apart for leysings, and in
no case were they to be buried in the portion re
served for classes above them. And if after giving
his freedom-ale and so attaining the first step in
freedom and independence the leysing should die
leaving destitute children whose support ought not
to be thrown back upon his lord, we have seen that
the way out of the difficulty was to dig a grave in the
churchyard into which the leysing's children were to
be placed and left, to starve to death, the last

502

General Conclusions.

But he
rose by
steps as
a kindred
grew around
him.

In Eng
land it
was so
once, but
the rungs
of the
ladder drop out.

survivor being the only one which the lord thence
forth had to maintain.1 This was the position of the
leysing at the bottom of the ladder of freedom.
But we found the leysing of the Norse laws
rising by steps into greater freedom and better social
position. And the process throughout was founded
upon the gradual growth of kindred. It was the
lack of kindred to swear for them and defend them
which placed them low in the social scale, and it was
the gradual growth of kindred generation after genera
tion which marked the steps of their rise into better
social position with higher wergelds.
When we turn to the Anglo-Saxon laws we seem
to detect similar tribal principles originally at work
but with differences which may very probably be
referred to the circumstances attendant upon con
quest and settlement in Britain.
The law of tribal gravitation here as elsewhere,
aided, no doubt, by other potent forces, had been at
work placing the man with an imperfect ' kindred in
a dependent position at the bottom of the social
ladder. And it is important to note that at first the
middle rungs of the ladder by which a man could
climb out of the dependent position seem to have
been present here as in Norway. The evidence is
scanty, but sufficiently important.
From the Kentish laws the presence of stepping-
stones into greater freedom may be inferred in the
case of the three classes of lo?ts with their rising
wergelds. And in a precious fragment of ancient

Supra, p. 265.

77/ij Twy-hynde Class. 503
custom happily rescued from oblivion we found
evidence that, originally at all events, there had been
a way out of the ceorl's twy-hynde condition at the
fourth generation of landholding connected with
payment of gafol to the king's utware and direct
service to the king. But we recognised that the
coUector of the fragment looked longingly back to
ancient custom, speaking of it in the past tense, as
if it was no longer in force.1
It would obviously not be wise to trust solely to
the negative evidence of the silence of the laws, but
in this case the silence seems to confirm the evidence
of the fragment. For the pathetic tone of the frag
ment finds an echo in the fact that all traces of the
middle rungs in the ladder seem to have vanished
from the later laws. There is no mention in Ine's
laws or in Alfred's of there being or having been
several grades of freedmen or lasts. Even the half
wergeld of the six-hynde stranger who has risen to
the possession of five hides silently disappears after
King Alfred's time. From whatever cause, so far as
the evidence goes, the twy-hynde class seems to have
become a homogeneous class in which, in spite of
different origins, distinctions were merged in a
common economic condition. Differences of origin
were perhaps forgotten as the result of comradeship
in the long struggle against the Danish foe.
We thus seem to be driven to recognise the width &°-& tnis
. kept open
and to some extent the bridgelessness, already m the gulf
King Alfred's time if not in King Ine's, of the gulf twy-hynde
between the position of the twelve-hynde landed class a^glve.
 hynde classes.
1 Supra, p. 367.

504 General Conclusions.
and that of the twy-hynde dependent class of gafol-
geldas and geburs who were tenants on their land
It seems probable that, though technically and
reaUy free in the sense of not being thralls, the
twy-hynde class, broadly speaking, may have found
themselves very early, if not from the first, placed in
an economic condition of service and servitude,
including work as well as gafol, which by the ultimate
disappearance of the middle rungs of the ladder
might very easily slide into what is loosely called the
' serfdom ' of later times.
In the meantime we realise that the abjectness of
this semi-servile condition may be very easUy exagge
rated by modern associations with the terms ' service '
and ' serfdom.'
It is when we turn from the twy-hynde class to
the position of the class above them, of gesithcund
and twelve-hynde men, that we learn that a part at
least of the risk of misunderstanding may he in the
difference between the tribal notion of service and
freedom and the more modern one.
Position What, then, has tribal custom to teach us as to
vicesTf the position and services of the twelve-hynde class ?
hyndeelve Beverting once more to the compact between
class. Alfred and Guthrum, Dane and English are to be
equally dear at eight half-marks of gold. The Eng
lishman, without any limiting adjective, is the twelve-
On a level hynde man. And he is put on a level with the
Norse Danish typical free landholder, the hauld or odalman
odalman. Qf fae Norse laws, whose wergeld under Norse law
was that of the typical freeman everywhere — equi
valent to the normal wergeld of 200 gold solidi, the
mina of gold, the traditional wergeld of 100 head of

Nature of Landholding. 505
cattle. It was six times that of the Norse leysing, just
as the twelve-hyndeman's wergeld in England was six
times that of the ' ceorl who sits on gafol land.'
The English twelve-hynde man is therefore put
on a level with the Norse odaller or typical land
holder. And so, as we have seen, the ceorl who rose
by the middle rungs of the ladder into the twelve-
hynde position had inter alia to become a landholder
of 5 hides, and his family became gesithcund only after
the landholding had continued to the fourth genera
tion. His great-grandchildren then became gesithcund
with a twelve-hynde wergeld.
The twelve-hyndemen were therefore landholders, Tweive-
,,..., .P . bynde
surrounded, in principle at least if not always m men were
practice, by a kindred. But what kind of a land- holders.
holding was it ?
Approaching the question strictly from a tribal
point of view, the solidarity of the kindred involved
in the payment and receipt of wergelds would cer
tainly suggest that those who had a right to receive
and the obligation to pay held a position in their Position
t ¦ , -. ¦ -,-nn n 1 P 1 t of the first
kindred quite different from that of the modern settlers.
individual owner of land.
The analogy of Welsh and Irish and Salic and
Norse and Scanian tribal custom would lead us to
infer that the Anglo-Saxon settlers in England must
have brought with them traditions of tribal or family
ownership more or less of the type of the Cymric
gweiy, though doubtless modified by emigration and
settlement in a new country.
After all that has been said, traditions and perhaps
actual examples of the individual ownership of the
'Bomanus possessor,' and, still more likely, actual

506 General Conclusions.
Separa- experience of the Boman type of landed estates, may
their kind- have survived in Britain from the period of the Boman
threw occupation, and the Anglo-Saxon settlers may easily
them on have DeerL influenced in the matter of landholding by
the pro- ° J
tectionof what as conquerors they came to supplant. But they
can hardly have wholly cast off their own tribal tradi
tions and instincts. The continued payment and receipt
of wergelds show that they did not. Even, to take an
extreme case, if they came to Britain as single settlers
having left their kinsmen behind them, stiU kindreds
would graduaUy grow up around their descendants in
the new country. And tribal custom left to itself would
give to them landed rights, quite different from those
of the individual owner. But the interval, apart from
other outside influences, may weU have subjected
tribal custom to a strain.
From the point of view of this interval it may not
be unreasonable to revert to the clauses of King
Alfred's laws on ' kinless men ' and the Norman prece
dent, that the king was to take the place of the
missing maternal kindred and of advocate for a
Norman if he had no other.1
Unless, therefore, the twelve-hynde settler was
surrounded by a full kindred in the new country, he
must, according to his own tribal custom, have found
himself much more of an individual than he was used
to be, and therefore more dependent upon the protec
tion of his chieftain or king.
We must not, on the one hand, conceive of the
twelve-hynde settler as having all at once adopted the
independent position of the Boman ' possessor,' though
Supra, p. 322 ; and Laws of Alfred, s. 27 aud 38.

Tribal Freedom and Service. 507
circumstances may have sometimes severed him as
completely from his ' parentilla ' as the ceremony of
the Salic law. Nor can we, on the other hand, con
ceive of him always as a tribesman surrounded by his
kindred. He may evidently, on the one hand, be
released from many of the trammels involved in
membership of a kindred, but, on the other hand, he
is thrown more than ever under conditions of service
to the king.
Let us for a moment revert to the tribal concep- Service
tion of these trammels and services. They did not tribal cus-
always involve degradation of social condition. They degrading.
often, as we have seen, wTere the mark of the attain- Jut th e
. . ties °f
ment of a higher position. kindred
The kindred of the aillts or strangers who settled restraint
upon a chieftain's land under Cymric custom was individual
acknowledged in the fourth generation of continued actlon-
occupation, but at the moment a kindred was
acknowledged its members became adscripti gleba?.
When the Irish fuidhir did the same his descendants
of the fourth generation found themselves not only
bound to the land, but also bound together by
something like the rules of the Cymric gweiy, so that
one of them could not sell or charge his share without
the consent of the others. We found the same thing
in Norway, where the rules for ^payment of the
wergelds by relations were more elaborate than any
where else, and where the growth of kindred seems
so completely to have ruled the rise from one social
grade to another, till at last a man whose great
grandfather's great-grandfather was a freeborn land
holder became an odaller. If at first sight we were to
picture the odalman to ourselves as an individual

508

General Conclusions.

The Norse
odalman
a sharer
in the
odal, with
duties to
hiskindred.

The Salic
alod a
familyholding.

freeholder of Boman or modern type we should soon
find out our mistake when we learned that if he
wanted to seU his odal he must first consult his odal-
sharers. When examined closely the fact became
evident that it was the group of kindred that by long
settlement on the land had become odal, and that the
shares of individuals in the odal were subject — with,
of course, many differences — to some such tribal cus
toms as those of the Cymric gweiy. The odalman
was thus not a single isolated landowner. He was
surrounded by kindred odal hke himself, reciprocally
bound to fight for one another and swear for one
another, and to share in the payment or receipt of
one another's wergeld. The odalman was protected
by his kindred, but his freedom of individual action
was restricted by it.
So also under Salic law the joint inheritors of the
alod on terra Salica, with right of redivision between
great-grandchildren per capita, were in the same way
trammeUed, and when by a solemn public form they
released themselves from their obligations to their
kindred they relinquished also all rights of inheri
tance and protection (p. 134).
Are we to consider these Continental analogies to
be without relevance to Anglo-Saxon landholding ?
Dr. Konrad von Maurer, in those masterly papers
contributed in 1855 to the ' Kritische Ueberschau'
which are still so valuable, rightly lays stress upon
the power of the kindred as the great rival of the
power of the state in the development of Anglo-Saxon
polity. We find but little direct allusion to the
kindred in the laws, it is true. But incidentally and
as it were by accident we have learned from passages

The Twelve-hynde Settler. 509
mentioned in their proper place that so late as the
time of Athelstan there were kindreds both twelve-
hynde and twy-hynde powerful enough to defy the
King's peace.1
This is in itself a significant reminder that more
or less of tribal custom remained in force behind the
screen of the laws from which most of our evidence
has been taken. And yet we seem to be almost
forced to the conclusion that if we try to realise the
position of the twelve-hynde settler we must regard
him, at all events for the first few generations, as in a
very different position from that of the Norse odalman
in the old country. Even though as head of his
family he may have brought descendants and
dependents wdth him, he could not in the new country
be at once surrounded by kinsmen and odal-sharers
who with himself had hereditary rights in the land.
We thus come round again to the point that Angb-
so far as he may have been separated from his twelve-
kindred the first Anglo-Saxon settler must have geytUgr
found himself thrown upon the protection of his ^&\s §afo1
. . ... an" ser_
chief and into a position of individual service, vice direct
He becomes, as we have seen according to the king.
scanty evidence of the Laws of Ine, a king's gesith,
with military and judicial and administrative duties
to discharge, put into a post of service which he
cannot relinquish at pleasure. Service to the king
has to some extent taken the place of the restraints
of kindred, and so in a sense, like the twy-hynde man,
he has become a gafolgelda, but paying his gafol and
services direct to the king, and adscriptus glebce,

1 Supra, pp. 415-416.

510 General Conclusions.
but tied to an estate and an official position instead
of to a yardland.
This view of the position of the gesithcund and
twelve-hynde class rests very much upon the inci
dental evidence of the Dooms of Ine, but the truth of
it is confirmed by the independent evidence of the
precious fragment already referred to. For its
interesting evidence shows that, in addition to his
holding of five hides of land, it was precisely into this
position of gafol-paying and service direct to the king
that the ceorl of ancient custom had to climb in order
to earn the gesithcund status and the twelve-hynde
wergeld. Thus we arrive at a definite and practical mark
distinguishing ultimately, and perhaps more or less
from the first, the twelve-hynde and twy-hynde classes.
The twelve-hynde or landed class paid gafol and
did service direct to the king. The twy-hynde or
dependent class paid gafol and did service to the
landed class, who from this point of view were
middlemen between the twy-hynde gafolgelda and
the king.
The hold- We seem, therefore, thus early to arrive at some-
from'the thing analogous to Brofessor Maitland's technical
becomes'17 definition of the Manor as the fiscal unit from which
a manor, gafol is paid direct to the king, while its lord is the
receiver of the payments and services of its tenants.
The single landholder who is not under a manorial
lord in the Domesday survey is said to hold ' as for
a manor ' — though he may have no tenants.
It may be worth while in this connection to allude
to another general feature of the manorial estate on
both sides of the Channel which if not directly of

Tribal Elements in the Manor. 511
tribal origin must at least have worked in close Tribal
sympathy with tribal custom. iTtht^
The gesithcund man officially charged with the man°r.a^
control of a district or estate easily became in a unit-
manorial sense lord of the dependent tenants upon
it. And the judicial and magisterial adjunct to the
lordship became a prevalent feature of the typical
manor. We have seen that the ' sac and soc ' of later
times may have grown from 'the root . of the tribal
principle involved in the sacredness of the precinct
or area of protection of the chieftain and, in degree,
of every grade of tribesman who possessed a home
stead. How large a place this principle occupied is
shown by the prominence of the fredus in Frankish
law and of the mundbyrd in the early Anglo-Saxon
laws. The manor was a complex product of many
factors, and tribal custom was certainly one of
them. Once again, what kind of a holding was that of Was it a
the twelve-hyndeman? Was it a family holding, and hoTdmg?
what were the rules of succession ?
Unfortunately, we do not know how far the immi- Place
grants came in kindreds and families or as followers favour of
and 'gesiths' of military chieftains. But, in any go^etimes
case, if we may take the evidence of place-names the a family
J . holding.
great number of patronymic names of places would
lead to the supposition that the holdings were family
holdings. The ham may at first have been the estate
of a gesithcund man held direct of the king with
gafolgeldas and geburs under him holding yardlands
and doing work on his demesne. But when it becomes
an ingham the patronymic termination points to the

512 General Conclusions.
lordship of the manor having been held, as time went
on, jointly, in somewhat the same way as the Cymric
chieftainship in the gweiy. His sons and grandsons
and great-grandsons may really have had their rights
of maintenance all along, and ultimately, if they were
allowed to do so, they may have sometimes divided
the inheritance instead of continuing to hold it
jointly. Tribal instincts working alone would pro
bably follow some such line as this.
But it is easy to s*ee that the nearer the holding
of the twelve-hyndeman approached to a benefice or
office the stronger would be the tendency towards
single succession instead of divisions among heirs.
During the century or two after the first settlement
there was time, no doubt, for the growth of kindreds,
and the thane in the king's service would soon become
the head of a family group ; but, on the other hand,
many influences were at work undermining the soh
darity of the kindred and strengthening the manorial
element. Tribal instincts die hard. But probably
there never was full opportunity for the growth upon
English soil of anything like the sohdarity in land-
holding of the Norse kindreds of odal sharers tracing
back their family possession for four or five generations.
roik-iand There is but little evidence on the rights or rules
may have C
devolved of succession to be found in the laws. And the
under ... .
tribal silence is suggestive of the continuance of custom.
custom. jj]ven tne diplomatic evidence of wills and charters
is so much restricted to boc-land that it perhaps
throws a shadow rather than direct light upon the
ordinary devolution of land which had not become
the subject of the Bomanised rules of ownership,
conveyance and testamentary disposition.

Survivals of Family Holdings. 513
But if Brofessor Vinogradoff is right in his view
that folk-land was that land which was still held
under ancient custom, then for anything we know,
in spite of documentary silence, folk-land may stiU
have been held more or less as family rather than indi
vidual property even in later times.
If the suggested analogy between the terra Salica
of the Salic laws and the folk-land of Anglo-Saxon
documents could be proved, the family character of
the holdings in both cases would receive confirmation.
At the same time the frequent concurrence of relatives
in Anglo-Saxon dispositions of land and the common
form of deprecation of future interference on their
part would at least be consistent with the supposition.
That as time went on the growing force of feudal But
principles would demand single succession to landed principles"
estates whenever they could be regarded as benefices tlridto-
is what might be expected. And it is worth noting ^arcJs single
that under later feudal custom, by a kind of compro- succession
n f -i c outwardly.
mise, what was really a family holding was often
artificially moulded for practical purposes into a
single holding with apparent single succession.
In the Domesday survey are many instances in
which thanes or soldiers here and there hold manors
or fractions of manors 'pariter' or 'in paragio.'
And when the feudal tenancy ' in parage ' is examined
in its fully developed form on the Continent, it is
found to present many resemblances to what under
Cymric custom the family holding of a tribal chief of
kindred might be if the chief alone were regarded as a single
the landed person doing homage to the superior lord ^^"ovei-
for aU his kindred and if, in the next stage, when the internal
. . family
gweiy was internally divided between brothers, one divisions.
L L

514 General Conclusions.
of them only did homage for the rest. There were
indeed in tribal custom as to the chieftainship and the
constitution of the gweiy traits which easily allowed
themselves to be developed on feudal Unes. For the
present purpose, however, the point seems to be that
within what looks from the outside hke a single
individual landholding there may have been internal
family divisions which are not apparent.
Bassing now from what may be regarded as the
holdings of the twelve-hynde class, more or less
tending to resemble manorial estates, to the yardlands
of the twy-hynde class, room may perhaps be found
even in their case for the exceptional continuance of
the family element in spite of the apparent single
succession.
Kentish The Kentish holdings in sulungs and yokes instead
holdings. °f in Qides and yardlands seem to go back to the
earliest Kentish records. The fact that, in spite of
the difference in date between the evidence of the
earliest charters and that of the Domesday survey and
the surveys in the Battle Abbey records and the
' Black Book of St. Augustine,' the holdings seem to
have been throughout in sulungs and yokes points to
continuity. And when these sulungs and yokes in
the surveys are found to be very often held by ' the
heredes of so and so,' or ' so and so and his pares,' it
seems fair to suggest that in these Kentish holdings
there may have been a survival of family ownership.
Whether it were so or not, this later Kentish
evidence shows at least that the continuance of
family holdings was not necessarily inconsistent with
external uniformity in the sulungs and yokes of the
open-field system in Kent, And if so, why may not

Kentish Family Holdings. 515
the same thing be true in exceptional cases of the
hides and yardlands of Wessex and Mercia ?
Contrary principles have a strange way in practice
of finding a modus vivendi till one of them at last over
rides the other.
It will be remembered that one of the complaints Gavei-
of the existence of kindreds powerful enough to defy holdings
the king's peace in King Athelstan's time came from J*™a
Kent. And if these facts may be taken as evidence holdings.
that the solidarity of kindreds had been better pre
served in Kent than elsewhere some tribal light might
perhaps be thrown upon the survival of the custom
of gavelkind in Kent,
It is not a matter upon which we must dwell, but
evidently the gavelkind tenure must have been
something different from the prevalent tenures of
other districts. The difference cannot have been the
equal division of the sulungs and yokes between sons
as contrasted with the single succession to the yard-
lands of other districts, because the sulungs and
yokes were apparently not interfered with by the
gavelkind division among heirs. And when the right
of the youngest son under the custom of gavelkind
to succeed to the parental hearth is compared with
the similar right of the youngest son in the case of
the Cymric gweiy the inference becomes very strong
that the gavelkind holdings were family holdings and
the gavelkind divisions internal divisions within the
family, like those of the Cymric gweiy, not necessarily
interfering with the permanence of the sulungs and
yokes of the open-field system of which the family
holdings were composed or in which the family had
rights.

516

General Conclusions.

Analogy of the
Cymric
tref-gordd.

The surveys of Kentish manors in the records of
Battle Abbey and the ' Black Book of St. Augustine '
present instances sometimes of sulungs and yokes
held by the heredes of a deceased person and some
times of others which maintain their unity for
purposes of payments and services although in the
possession of several holders. The sulung in these
cases seems to have continued to be the unit liable
for the fixed ploughing and other services irrespec
tive of the question who were its occupants.1
Once more perhaps some light may be gained
from Cymric tribal custom.
We have learned from the Cymric evidence that
a district might be divided for purposes of revenue
and food rents into sub-districts, irrespective of who
might be the occupants. And we have seen also how
the Cymric trefgordd or unit of pastoral occupation,
with its one plough and one churn and one herd
of cattle under a single herdsman, could remain a
permanent taxable unit paying the tunc pound in

1 This is not the place to enter
into the details of the Kentish
holdings, but reference may be
made by way of example to the
5£ ' sulings ' of ' Christelet ' in the
Black Book of St. Augustine.
The suling is still the unit for
services and payments. The
' Suling de Fayreport ' contains
300 acres (and was probably
originally a suling and a half),
but it is divided into 11 holdings,
8 of 25 acres each and 3 of
33^ acres each. Six of the eleven
holdings are still occupied by
persons bearing the name of

' de Fayreport ' or the ' heredes '
of such persons, and probably the
others may belong to relatives.
The ' Suling de Ores ' is, on the
other hand, divided into about
40 quite irregular holdings, vary
ing from less than an acre to
44 acres. Several are still
occupied by ' heredes ' of persons
of the family ' de Ores.' (Cottonian
MSS. Faustina, A. 1, British
Museum, fol. 567 et seq.) The
manor ' de Ores ' is in the list of
those afterwards disgavehed : see
Elton's Tenures of Kent, p. 400.

Single Succession to Yardlands. 517
lieu of food rents, whoever might at the time be
its occupants and have cattle in the herd. Within
the lines of tribal custom itself the members of
a Cymric gweiy might be spread over a district
and their cattle distributed among many tref
gordds, while from the chieftain's point of viewT
the local units of taxation were uniform and
regular. But this must not blind our eyes to the fact that But the
the yardlands on Anglo-Saxon estates were, so far as were
we can see, for the most part reaUy individual holdings Jiangs
with actual single succession. However hard tribal withsin.sle
° succession
custom may have fought for the family element, the on pay-
manorial element in the end seems to have prevailed relief to
on most manors so as to secure, for the purposes of the * e ou ¦
lordship and the convenience of manorial manage
ment, single succession to the yardlands. The fact
that as early as King Ine's time we see new individual
holdings of geburs being made by the aUotment of
yardlands and homesteads to individual tenants in
return for gafol and work, when taken in connection
with the ' Bectitudines ' brings us back to the likeness
of these holdings to the holdings of the viUani of
later times. We see in the allotment of stock to the
gebur, of which we trace scattered evidence, the fact
on which the principle of the later villenage was
based. Only when both homestead and yardland
came from the lord was there to be work as well
as gafol under King Ine's laws. The stock of the
holding according to the ' Bectitudines ' belonged in
theory to the lord and upon the tenant's death
returned to the lord. The continuance to another
tenant on the payment of a relief involved the

518 General Conclusions.
admission that the holding and its outfit were a loan
from the lord.
The The fact that in exceptional cases family holdings
element were able to maintain their own under manorial
b^fo'st10* management must not be aUowed to lead us to
sight of. underrate the power of the manorial element. There
were in tribal custom itself as described by Tacitus
elements of what we have elsewhere spoken of as the
embryo manor, but this must not blind our eyes to
the fact that something more wras required to produce
the general uniformity of holdings and single succes
sion upon manorial estates than tribal custom working
alone. If from a tribal point of view we try to understand
the growth of manorial serfdom and see how on the
Continent it was seemingly the result of the combina
tion of two leading factors, tribal custom and Boman
methods of land management, it becomes hardly
possible to ignore the presence of something hke the
same combination of two interacting factors on British
or English ground.
With the manorial side of serfdom in its connec
tion with the widely prevalent open field system we
have already attempted to deal in a former volume.
That there may have been some continuity and
continuance of estates managed on the Boman system
can hardly be denied. However far the policy of
extermination of the old inhabitants was carried, it
never extended over the whole area. And the whole
of Britain was not conquered in the same century.
Even if the continuity of estates in Britain should be
considered to have been entirely broken by the Anglo-
Saxon invasions (which is hardly conceivable), it must

Manorial Influences. 519
be admitted that continuity and likeness between Eng
land and the Continent as to land management was
very soon restored on monastic and other ecclesiastical
estates, and perhaps also upon what was Boyal
domain. Nor can it be doubted that herein was a
force greatly strengthening the manorial element.
If we limit our view to the tribal side only of Tribal
the problem, we recognise that in Scandinavia and only0™
in the Cymric districts of our own island and in ^""J^g'
Ireland tribal principles working alone tended power- whole
fully, without help from the Boman side, to produce a
class of tenants becoming adscripti gleba? after four
generations of occupation, but it did not produce
either in Norway or in Wales or Ireland or in Celtic
Scotland that general and typical form of occupation in
uniform yardlands or ' huben ' so prevalent in England
and Germany on manorial estates with ostensibly
single succession and services in so many points
resembling those of the Boman colonate.
Whether the manor was the indirect or direct
successor of the Boman Villa — i.e. whether the con
tinuity was broken or not — the manorial use of
the open-field system of agriculture seems to be
required to produce the uniformity of holdings
in yardlands and the single succession which marked
what is roughly called the serfdom of the manorial
estate. It is hardly necessary to repeat that the open-field The open-
system itself was not of manorial origin. It was system
essentially an economic result and differed very manorial
greatly in its forms. Its main object seems to have orisin-
been fairness and equality of occupation. Under tribal
custom, in Wales, it arose out of coaration of

520 General Conclusions.
portions of the waste or pasture by the common
plough-team to which the tribesmen or the taeogs, as
the case might be, contributed oxen. The strips were
day-works of the plough taken in rotation by the
contributors according to the place of their oxen in
the plough-team for the season, and they returned
into common pasture when the crop had been
removed. The tribesman in the pastoral stage was
the owner of oxen but not of the strips ploughed by
them. They were merged again in the common
pasture of the district in which he had rights of
grazing for his cattle. And the cattle, and not the
corn crops, were the main thing upon which the sys
tem turned.
Whatever method of distribution may have been
foUowed, as arable farming increased and the strips
became more and more permanently arable, mostly on
the two-field or the three-field system, the area of
unploughed land was more and more restricted and
the pasture over the stubbles and faUows obviously
became more and more essential. The cattle, on the
one hand, required the pasture on the stubbles and
fallows, and the land, before being ploughed again,
required the manure arising from the pasturing of
the flocks and herds upon it.
Where open-field husbandry still subsists in West
ern Europe, whether on this or the other side of the
Channel, the owner of the strips has still no right of
grazing upon his own strips till upon the appointed
day when the common right begins of aU the holders
to graze their cattle in a common herd or flock over
the whole area. This right is known in France as
the ' vaine pature,' and it is still the most important

Manorial Influences. 521
and indestructible element in the open-field husbandry.
In the great open fields around Chartres a man
may plant his strips with vines if he likes, but to
this day, if he does so, he must let the sheep of the
commune graze over them after a certain date, in
exercise of the immemorial right of the vaine pdture.
In aU this no manorial element need be present, But uni-
and when the manorial element is absent there is not holdings
necessarily any uniformity or single succession in the g^es"^
holdings. But when manorial management comes a£e marks
upon the top. of this widely extended and all but manorial
universal system of agriculture, whether in Boman
times or later, the bundle of scattered strips which
under tribal custom could be ploughed by a pair of
oxen whether alone or in joint ploughing is very natu-
raUy taken as the typical holding. And thus when we
find in the Laws of Ine and later records gafolgeldas
and geburs settled upon yardlands and doing service
by week-work on the lord's demesne the natural
inference must be that it is the result of manorial
land management and that there has come into exis
tence already something like a manor with something
like a community in serfdom upon it, using the
prevalent open-field system as the sheU in which it
will henceforth live so far as its agriculture is con
cerned. And so it seems natural to attribute to the ma
norial management and the manorial requirement of
fixed services and dues the uniformity of the holdings
and the single succession by which the uniformity
was preserved. The power which seeks and makes
uniformity seems to come from above. Agricultural
communities of free tribesmen who had become indi-

522

General Conclusions.

Later evi
dence of
free hold
ings may
not be to
the point.

The Danishwars left
manyestates
vacant, whichmay have
been re
construct
ed on
feudalrather
thanmanorial lines.

vidual freeholders (if such could be conceived of as
prevalent in King Ine's and King Alfred's time) would
probably have used the open-field system in a quite
different way. And we see no trace of it in the
evidence.
When, however, we have said this we have no
disposition to ignore or make hght of the later evi
dence upon which great stress has quite rightly been
laid by Brofessor Maitland in his remarkable work
on ' The Domesda}^ Survey and beyond,' showing
that there were in some districts villages, in which the
manorial element was apparently absent in the time
of Edward the Confessor, though appearing as manors
after the Conquest. He has suggested that in these
villages not only the manor in name but also the
manor as a thing was apparently non-existent. There
was in these cases apparently, in King Edward's time,
no demesne land upon which the services of a te
nantry in viUenage could be rendered, and the tenants
were often sokemen who had individuaUy put them
selves under the protection of this lord or that, instead
of there being one lordship over the group, as in a
manor. These lordless villages on the eve of the Conquest
as shown by the entries T. B. E. in the Domesday
survey and especially in the ' Inquisitio Eliensis,'
merit more careful study than has yet been given to
them, and so far as they can be shown to prove
the existence of free villages of liberi homines or
socmanni, after the Conquest merged sometimes in
the class of viUani, I am ready to welcome the
evidence. But unless they can be traced back to
earlier times, their occurrence mostly in the Danish

The Domesday Socmanni. - 523
districts interspersed with other villages which were
manors and had demesne land, together with the
singular fact that the holders in these villages were
commended to several lords, suggests that their
peculiar position may date from the time of the
Danish invasions, and be the result of the devasta
tions as to the effects of which the ' Liber Eliensis '
contains so much evidence. Many a manor may
have lost both lord and tenants, and have been filled
up again by the great lords of the district with new
tenants — soldiers and servants who had served in the
wars, it may be. Thus these cases, in which many
features of the ordinary manor were apparently
missing in the time of Edward the Confessor, may be
of recent date and so, while important when viewed
in relation to the Domesday survey and the changes
made by the Conquest, not specially instructive as
regards earlier Anglo-Saxon conditions.
Unfortunately, as we have seen, the laws of the The fact
Danish period, while recording existing and modified tn|arduig
Anglo-Saxon customs on various points, leave us in the Danelaga
fc still very
dark as to Danish custom, whether of old standing in uttie
the Danelaga or newly imported in King Cnut's time.
It was, no doubt, known to the invaders, and it was
enough for them to say ' as the law stands,' though we
do not know what it was. The whole question of the
Danelaga was purposely omitted from the scope of
my former volume, and now, after twenty years, still
remains a subject requiring careful examination by
future inquirers.
But this cannot be done completely until the
minute work which Brofessor Maitland and Mr. Bound
and Mr. Corbett are gradually doing upon the

524

General Conclusicms.

New
feudal tenures
may have
had a
tribal
root.

Domesday survey itself in its local details has been
further pursued, and it lies, with so many other
branches of a difficult subject, beyond the hmits of
the inquiry made in this volume.
Beference may, however, be incidentaUy made to
the numerous cases in which, in order to describe the
nature of the tenure of socmanni and others under
what were perhaps new conditions, the fact was
recorded in varying phrases whether this person or
that could or could not leave or seU his land. Of
some it is stated ' possunt recedere,' of others ' non
possunt recedere ' — of some ' possunt vendere,' of
others ' non possunt vendere.' Though these tenures
may have been comparatively modern and may belong
to a period of advanced feudal conditions, stiU it may
be possible that some trait of tribal custom may lurk
at the root of the distinction. From the manorial
point of view, it was necessary to record of the socmanni
whether they had only limited rights in the land subject
to the performance of services and ' consuetudines '
(which, by the way, seem to have been very much hke
those of the viUani) or whether they were permanent
freeholders who could sell their holdings and leave the
land when they liked.1 The position of the tenants
in this respect was probably dependent upon the
tenure under which the)^ held, i.e. upon whether they
were tenants with only life interests, or for successive
lives, or, as we should say, tenants in fee. After the
devastations of war many new tenants must have
been put upon desolated manors, and Brofessor

1 See Mr. Bound's interesting
chapter, ' Sokemen and their Ser

vices.' (Feudal England, pp.
28-34.)

Leases for Three Lives. 525
Maitland has very rightly laid stress in another con
nection on the traditional habit of granting leases for
three lives only, so that a holding might ultimately
return to the lord. He has pointed out that when
Bishop Oswald (a.d. 962-992), exercising manorial st.
rights over the great domain of the Church of Wor- tenants
cester made these leases to thanes on certain services successive
for three successive lives (i.e. for the lives of father, lives-
son, and grandson) he did it expressly for the purpose
of securing to his successor full power to renew them
or not.1 And from a tribal point of view it may be
a pertinent question whether the restriction to the
three generations had not some indirect connection
with the tribal custom or instinct, so often alluded to,
which gave to the fourth generation of uninterrupted
occupation fixity of tenure and status.
Becurring to the scattered cases of thanes holding
' in paragio ' and by no means confined to the Danish
districts,2 it was necessary to state in the Domesday
records, as in the case of the socmanni, whether
they had or had not power to leave or to sell, and
it may be useful that we should be reminded by
these cases, in which feudal custom had possibly
arisen out of tribal custom, that tribal custom was Tribal
not unknown to the Danish and Norman conquerors inown t0
of England. The Danish immigrants came from No"mans.d
a district in which tribal custom was still fresh
and vigorous. The Normans too, as is shown by the
so-called Laws of Henry I., found Anglo-Saxon
custom by no means altogether alien to their own
instincts. 1 Domesday Book and beyond, p. 306 et seq.
Ibid. pp. 204-209.

526

General Conclusions.

Romanis ing and
Christian
influencesapartfrom the
manor.

Before concluding this essay perhaps a further
observation should be made.
We have learned in the course of this inquiry
that it does not do to take too insular a view of
Anglo-Saxon conditions. The similarity of wergelds,
and indeed of tribal custom generally, has through
out become very apparent. But perhaps it is hardly
more striking than the similarity in the modifica
tions of tribal custom found in the laws on both sides
of the Channel.
In their migrations and conquests the conquering
tribes found themselves everywhere breathing a
moral atmosphere in which it was difficult for the
old tribal instincts to live. In such matters as the
responsibility of a master for his slave's homicides
and of relatives for their kinsman's crimes we have
watched as it were modifications of tribal custom in
the course of being made, here and there, on almost
identical lines. May it not have been so also in
regard to the important matter of the division of
classes ?
If we have recognised rightly the tribal principles
originally at the root of the distinction between the
twelve-hynde and twy-hynde classes there is no
reason why we should not recognise also that besides
the potent force of manorial management there may
have been other influences at work widening the
gulf between the two classes, and, so to speak,
reducing to a level the members of each class by
breaking away the rungs of the ladder between them.
It must not be overlooked that in the earliest
Continental laws most nearly contemporary with those
of Kent — Alamannic, Bavarian, Burgundian, and

Early Romanising Influences.

527

Wisigothic — the divisions of society have a very
artificial look, as though largely based upon wealth
rather than the tribal principles of kindred.
Now, German writers are not agreed upon the
point whether these artificial divisions found in these
earliest of the laws ought to be regarded as belong
ing to ancient German custom or whether they may
not rather be traced to Boman influences.1
We have already seen how necessary it is in con- The
nection with these early laws to discriminate between iaws most
ancient custom and the new influences which were DyflE0man
working in them in the direction of individualism and traditions.
the disintegration of the kindred. The earliest laws
are, as we have seen, just those in which tribal custom
had fared the worst.
In the Alamannic Bactus of the sixth century
(Fragment ii. 36) the grades for wergelds were as
under : — (1) ' baro de minoflidis,'
(2) ' medianus Alamannus,'
(3) ' primus ' or ' meliorissimus Alamannus.'

Non-tribal
division of
classes.

And these were subdivisions of the ingenuus class, for
there were below them the lidus and the servus. In
another clause (iii. s. 25) a similar division is applied
to animals. The penalties are given for killing
ordinary, ' mediana,' and ' meliorissima jumenta.'
In the Burgundian law the division of society into
three grades — optimates, mediocres, and inferiores —

1 Compare Brunner's chapter
32, 'Adel und Freie,' in his
Deutsche Bechtsgeschichte, p. 247
et seq., with Das Bbmische
Recht in den Germanischen
Volksstaaten, von Prof. Dr.

Alfred von Halban (Breslau,
1899), pp. 132, 207, 262, 280, and
294. And see Dahn's chapter
' Der Adel,' p. 88 et seq., in his
Die Kbnige der Germanen, Band
vi. (Leipzig, 1885).

528 General Conclusions.
is found in the Lex Romana and is applied to Bomans
and Burgundians alike. These divisions seem to
supplant those of kindred, and to have no tribal
principle at their root.1
In the Wisigothic laws the disintegration of tribal
society is so far advanced that the wergelds of the
ingenuus class are regulated, not by kindred or social
position, but, as we have seen, according to the age
of the individual.
It is difficult not to connect the substitution of
artificial grades for those dependent on kindred with
the Boman tendency to divide society into 'patrician '
and 'plebs,' and the ' plebs ' according to position and
wealth into honestiores and humiliores.
Already in Csesar's time we see how difficult it
was from a Boman point of view to understand the
relation under tribal custom of the dependent tribes
men to their chieftain. Csesar does not seem to have
recognised the link of blood-relationship between
them. To his view the chieftains were equites and
the tribesmen almost their servi. It was difficult
otherwise to bring the two classes within some
recognised category of Boman law.
So it was no doubt, in degree, at the later period
in the case of the conquering German tribes, when
the Bomanising forces were mainly in clerical hands.
The influence of the Church also told in favour
of the artificial and anti-tribal division of the people
into great men and small men. Its tenets of indi
vidual responsibility favoured individualism.

1 Compare the tendency to triple divisions in the Kentish Laws:
¦iupra, p. 465.

Ecclesiastical Influences. 529
Canon XVI. of the Council of Orleans (a.d. 549) ml.
¦ -i • T^e antl-
shows that the ecclesiastical mind in Gaul was familiar tribal in-
with the division into classes ' majorum et mediocrium the""
personarum.' «h,
A canon of an earlier Council (a.d. 511) shows how ern
, ' Europe.
by taking refuge in a church a homicide received
protection till composition was arranged, and how
thus the question of wergelds was brought within
clerical recognition. Once brought within its power . ,
the Church was not likely to let it slip from its ofMero-
grasp. And the collections of Formulae of the formX
Merovingian period show how the clergy joined with aseirgeegidSda
the other authorities in arranging the payment of
wergelds and the prevention of private vengeance.
From these formulae it would seem that the payment
and perhaps the amount of the wergeld had become
to some extent a matter of mediation and arrangement
through the intervention of ' boni homines ' who were
sometimes -ijsacerdotes.' l And when the award was
given and the payment made, it was natural that a
formal charter of acknowledgment in stay of
vengeance on the part of the relations of the slain
should be insisted upon. Each set of formulae
contains a form for this purpose. The matter of wer
gelds had become a subject of Franco-Boman con
veyancing. Bomanising and clerical influences thus working
together in connection with wergelds would naturally
tend to exclude from consideration the question of

1 Marculfe, ii. 18 and 16. For
mula Lindenbrogiantz, 16. And
see F. de Coulanges' useful
chapter on ' Organisation ju- M M

diciaire chez les Francs ' in
Quelques probUmes d'histoire
(1885).

530 General Conclusions.
clerical kindred, and to make the payment of the wergeld a
!" Eng°eS matter for the homicide alone.
land in Long before the time of King Ine these Bomanising
favour of . ° & % °
individu- influences must have been at work in England, as
evident elsewhere, introducing new considerations of justice
modinca- an0^ the position of classes founded on Boman law
tion of an(j Christian feeling, and not upon tribal custom.
custom . .
found in We have recognised some such action as this in
Anglo- the nearly contemporary Canons and in the Kentish
iaws°n laws, as well as in the later Anglo-Saxon laws, and
indeed again and again throughout this inquiry, so
that while we have had to notice again and again
the extent to which the Church succumbed to tribal
custom when it suited its purpose to do so, it must
not be forgotten how much of the modification of
custom found in the laws was due to the influence of
the Bomanised Church.
It is not, therefore, enough to recognise only
Bomanised forms of land management under clerical
influence. We must recognise also something of the
same persistent antagonism of the Church to tribal
custom which on the Continent had already in the
sixth and seventh centuries sometimes succeeded in
extruding considerations of kindred from the matter
of wergelds, and to a great extent also from the
question of the division of classes.
Last With this further recognition of outside influences,
this contribution towards the understanding of a
difficult question must come to an end. All that
can be claimed on its behalf is that a few further
steps in advance may have been made good. It may
seem to have resulted rather in the restatement of

Anglo-Saxon Point of View. 531
some of the problems than in their solution. But
this is what might be expected from the attempt to
approach a subject which has many sides especially
with light from the tribal side only. Following the
true method of working from the known to the
unknown, it is not until such a problem has been
approached separately from its different sides that a
final solution can be reached ; and this involves the
feUow work of many historical students.
In the meantime, without ignoring or seeking to
minimise the force of other important influences, it
may, I think, safely be said that we have found
the influence of tribal custom upon Anglo-Saxon
polity and economic conditions as apparent, all
things considered, as there could be reason to expect.
It was a factor in economic development which,
among others and in due proportion, has to be
reckoned with, and its study has the special value
that it helps to bring the student of the Anglo-Saxon
laws to regard them from the point of view of the
Anglo-Saxon settlers themselves.

INDEX

Aillts and AUtuds (strangers in
blood) under Cymric law, 50,
51 ; kindreds of, recognised at
fourth generation, 52
Alamannic Laws, 172-178 ;
wergelds, 172-175 ; value of
animals, 178
Alcuin, uses Eoman currency, 19,
184
Alfred, K., his laws, 370-377,
392, 396 ; compact with Guth
rum, 352-355, 500
Alod of land, a family holding,
508; Lex Sahca 'de alodis,'
151 ; Bipuarian law, 170 ; Lex
Anghorum et Werinorum, 226
AnciUa as currency, see 'Cumhal'
AngUi and Werini, Laws of, 224-
228; Wergelds of Uber 200 sol,
225 ; triple wergeld of the Ada-
limg, 225
Anglo-Saxon Custom, 321 et seq. ;
from Norman point of view,
321-336 ; from Danish point of
view, 337-350 ; from Viking or
¦ Northmen's point of view, SSI-
SOS ; from early custom (Al
fred's Laws), 370-377; Arch
bishop Egbert's Dialogue, 377-
385 ; King Ine's Dooms, 386-
439; Kentish Laws, 441-495;
Twelve-hynde and twy-hynde
classes, 406-416 ; Gesithcund
and Ceorlisc classes, 417-436 ;
Six-hynde stranger class, 371,
392, 396 ; position of wife, 326
Anglo-Saxon Wergelds, position
of paternal and maternal
parentes in payment of, 322,

323,-328, 358; of thane or
twelve-hynde man, 325 ; of
'freeman,' Dane and English,
326, 349, 353-55; of ' cyrlisci
vel villani,' 328 ; of ' villanus et
socheman ' in Danelaga, 331-
332 ; of ' ceorl on gafol-land '
and Danish ' lysing,' 353, 355 ;
how paid, 329, 357-59
Animals, value of as currency :
Bipuarian, 171 ; Saxon, 215,
217, 221 ; Alamannic, 178;
Cymric cow 3 oz., 48, 49; Irish
bo 1 oz., 97 ; Frisian dog, 202
Argenteus (silver drachma) of
Boman currency. See 'Currency'
Bavarian Laws, 175-177 ; wer
gelds, 174
Beowulf, evidence of, as to feuds,
56-72 ; as ' sister's son ' be
comes chieftain, 68 ; as to mar
riage, 71, 72
Borhbryce, fine for breach of
pledge or protection, like mund-
bryce, 347 ; of various classes,
377
Bullock as currency in Saxon
Laws, 217 *
Burgundian Laws, 121-125, 527 ;
original wergeld of 160 sol., 167 ;
Boman and Christian influence
on, 527
Burh-bryce (Burg-bryce) (breach
of fence of precinct), of various
classes, 372, 377, 387
C&sar, evidence of, as to Gallic
wergelds, 115-120 ; and on
Gallic landholding, 116; as to
division of classes, 528

534

Index.

Canones Hibernenses, 101
Canones Walliri, 105-109
Ceorl = man — husband, 482 ; so
man with household and flet
or precinct, 371, 394, 482— 'who
sits on gafol-land ' twy-hynde,
353-355, 361 ; ceorlisc class
mostly gafolgeldas, and twy
hynde, 373 ; once could rise to
be twelve-hynde, 366, 503 ; ac
cused of theft, 388 ; harbouring
a fugitive, 390 ; his mundbyrd
in Kent, see ' Mundbyrd '
Chamavi, laws of, 229 - 231 ;
wergeld of ingenuus 200 sol.,
229 ; triple wergeld of ' Homo
Francus,' 229
Charlemagne, conquest of Italy,
181 ; becomes emperor, 19, 181 ;
and issues nova moneta in silver
sohdi of lid. and at 1 : 4 with
gold, 182 - 194; conquers
Frisians and Saxons, 182, 195
Cnut. His greater Scandinavia,
339 ; his ore of ^th lb. or 16d.,
341 ; his smaller silver pence,
343
Compurgation, under Frisian
law, 203-205 ; under Anglo-
Saxon law, see ' Hyndens ' and
see ' Werborh '
Congildones = gegildas, sureties
in lieu of kinsmen, 323, 389, 415
Cows, as currency, 1. In Cymric
law, 49 ; Irish, 97 ; Alamannic,
178 ; value of, see ' Animals ' ;
Norse, 247-250; Bretts and
Scots, 307
Cumhal in Irish currency, 97-98 =
female slave and ' ancilla ' of
the Canones Hibernenses and
WaUici, 101, 109
Currency, in oxen : ox-unit of
Professor Bidgeway, 2 ; in cows,
Cymric, 1, 49 ; Irish, 97 ; Norse,
247-250 ; Bretts and Scots, 307 ;
in cumhals, ancillse or female
slaves, 97-98, 101, 109 ; in gold
torques, &c, 17 ; Anglo-Saxon in
silver sceatts of 28-8 w.g. or 20
to the Boman ounoe, 12, 443-
455 ; in silver pence of 32 w.g.
or 20 to the Frankish and Nor
man ounce, 12 ; gold and silver
mancus of 80d, 18, 829 ; Mer-

cian scilling of 4d., 12, 363 ;
Wessex scilling of 5d., 12, 325 ;
Kentish scilling of 20d., or two
gold tremisses, 443-455 ; Nor
thumbrian thrymsa of 3d., 362-
368 ; Danish in marks and
half-marks, 16, 353-354; Cnut's
in ores of 16d., 306, 341, 343
(see ' Ore ') ; Imperial in gold
solidi and tremisses of 32 w.g.,
5,6; in silver sich (didrachmse)
and argentei (drachmae), 184,
382 ; Merovingian in gold sohdi
and tremisses of 288 w.g., 9 ;
afterwards in silver tremisses,
10, 180, 443-445 ; Charle
magne's nova moneta in silver
solidi of lid. of 32 w.g., 10, 11,
186, et seq. ; of Norse laws in
gold and silver marks, ores and
ortugs at ratio 1 : 8, 233-238
Cymric tribal custom as to
galanas, 30 ; fiscal unit for food-
rents, the tref and treffgordd,
33-42 ; strangers, how treated,
50-54 ; as to marriage, 32 ;
galanas of several classes paid
in cows, 46-55. See 'Gweiy,'
' Galanas '
Danelaga, 331-332, 338, 522
Ealdorman in judicial position,
387; his burgbryce, 387; his
fightwite, 394 ; his residence,
420
Egbert, Archbishop, Dialogue of,
377 et seq. ; uses Boman cur
rency, 20, 879 ; wergeld of his
monks, 382, 491 ; value of their
oaths, 379
Eye, hand, and foot, payments
for, 175, 222, 225, 252, 300, 465,
489
Fightwite, fine for fighting within
a person's precinct or jurisdic
tion, 328-332, 359, 393; in a
ceorl's flet, 371, 394, 482
Firma unius noctis, mode of
paying food-rents to chieftain,
41, 431
Frankish Tribal Custom. Wer
geld of Lex Salica of 200 sol.,
131-146 ; division of classes,
147 ; triple wergeld of officials,
148 ; half wergeld of strangers,
149 ; the Alod or family holding

Index.

535

of terra Salica, 150 ; the ' de
alodis,' 151, 170, 226 ; edict of
Chilperic, 159 ; Bipuarian Law,
163-171 ; wergeld of 200 sol.,
163 ; division of classes, 165
Fredus, payment for breach of
king's peace, equivalent to A.S.
mundbryce or grithbryce, 488,
489
Freedman (libertus) under
Frankish Law, 168-170, 199 ;
under Bavarian Law, 175 ;
under Kentish Law, 478,484.
And see ' Last ' and ' Leysing '
Frisian Laws, 194-212 ; wergeld
of 160 sol., 167, 195, 201, 210 ;
ordeal under, 203-5
Frith, between Ethelred II. and
Olaf, 349 ; between Alfred and
Guthrum, 352-355
Frostathing Law (AncientNorse),
238-276. See 'Norse Tribal
Custom '
Gafolgeldas, tenants on others'
' land paying gafol to their lord,
with twy-hynde wergelds, 353-
355 ; fighting in gafolgelda or
gebur's house, 394. See ' Twy
hynde '
Galanas (Cymric death fine or
wergeld), 30 ; liability of kind
red for, 30-32 ; method of
payment, 42-46; amount of,
46-49; of non-tribesmen goes
to the lord, 54
Gebur, tenant of a yardland
doing work and paying gafol to
lord for house and oxen, 422-
429 ; fighting in house of gafol-
gelda or gebur, 394
Gegildas (see 'Congildones') sure
ties in heu of kinsmen, 323,
389 ; hyndens of frith-gegildas
in the city, 415
Gesithcund class, in direct ser
vice to the king and twelve-
hynde, 366; in landed position
with five hides to king's ut
ware, 369 ; forfeit land if they
neglect the fyrd, 391 ; in their
connection with land, 417 et
seq. ; sometimes evicted, 433
Grith, Danish for frith or peace,
344-348 ; grithbryce of English
and mundbryce of Kentish law

the same, 346 ; extent in area,
348 ; in duration of time, 346 ;
of different moots, 345
Gulathing Law, oldest Norse
law, 238-276. See 'Norse
Tribal Custom '
Gweiy (Cymric family holding of
four generations), 21-30; of
non-tribesmen, 52
Halsfang, first part of wergeld
paid to those ' within the knee,'
328, 329, 359
Hide in agriculture of four yard-
lands, 423; Mr. Corbett on
tribal hidage, 424 ; in pastoral
stage, 424 ; = familia of Bede,
also = hiwisc, 407 ; also = ' ma
nentes et tributarii ' of Arch
bishop Egbert, 381, 408 ; oaths
reckoned in hides, 381, 408 ;
the 10-hide oath of the twelve-
hyndeman, 411; oath of himself
and hynden of oath-helpers 120
hides, 411
Hiwisc (family) of land = hide,
364, 381
Homicide. Within the family
unavenged, 30, 63, 66, 164, 176,
241, 336 ; by a slave, 108, 202,
333, 472, 474 ; of a slave, 202,
333 ; between kindreds caused
blood-feud,see 'Beowulf,'or wer
geld in lieu of it. See ' Wergeld '
Hyndens of oath-helpers, 409 ;
of twelve-hynde and twy-hynde
class, 409-411 ; of city frith-
gegildas, 415
Ine, K. Laws of, 386-439 ; as to
theft, 387-389 ; burgbryce, 387 ;
ealdorman, 387-394 ; gesithcund
class, 388, 391 ; six-hynde class,
392, 396 ; gafolgeldas and
geburs, 393 ; ceorlisc class, 391,
396; weaih and wylise class,
397-405 ; twelve-hynde and
twy-hynde classes, 400-417 ;
gesithcund and ceorlisc classes,
417-436; comparison of Wessex
and Mercian with continental
wergelds, 436
Irish Tribal Custom, 73-120;
the Eric-fine consisting of (1)
the coirp-dire, or body-price,
of seven cumhals, 74 ; in Irish
and Breton canons, 101 et seq. ;

536

Index.

(2) the eneclann, or honour-
price, varies with rank, 75, 80-
83, 92 ; the hearths or kindreds
liable, 76-80 ; gradations in
rank, 83-86 ; grades of tenants,
86 et seq. ; currency, 97
Kentish Laws, currency in scaetts
and scillings, 443- 455 ; scilling of
20 scaetts or two gold tremisses,
450-455; laws of Ethelbert, 455-
466 ; of Hlothaere and Eadric,
467-476; of Wihtoed, 477-
481 ; division of classes, 481-
487; Kentish wergelds, 487-
492 ; compared with Continen
tal and Anglo-Saxon wergelds,
492-495; Kentish sulungs and
yokes, 514-515 ; gavelkind
holdings, 515 ; Kentish laets,
463, 484-486, 502
Kindred, solidarity of, 30, 45, 157,
276 ; grades of, 22, 30, 76, 318 ;
disintegration of, 111, 124, 129,
162, 164 ; emancipation from
restraints of, 134, 158, 507;
power of, in East Anglia and
Kent, 415, 416 ; liability of, for
wergeld, under Cymric custom,
42, 45; Irish, 77-80; Breton,
109 ; Burgundian and Wisi
gothic, 121-130 ; Salic Franks,
144, 164 ; Frisian, 212 ; Saxon,
216; Norse, 246-257 ; Scanian,
290, and see 'Anglo-Saxon wer
gelds ; ' groups of, holding land,
Cymric gweiy, 21-30; Alod of
terra salica, 150-162, 183 ;
Bipuarian hereditas aviatica,
171 ; Norse odal-sharers, 271-
275 ; Scanian family holdings,
276-288; Anglo-Saxon family
holdings, 511-5 16
King's thane, oath of, 353,368,390
Lcet, in Kentish Law of three
grades, 463, 484-486, 502. See
' Leysing ' and ' Freedman '
Leases for three successive lives,
tribal reason for, 524 ; St. Os
wald's tenants, 525
Leysing in Norse law, newly made
freedman, his rett, 240 ; his
wergeld, 259 ; his want of kind
red and his rise by steps of
three generations into freedom,
260 267

Leysing's son, great grandson of
leysing in higher social position,
259, 268
Litus, Bipuarian, 168 ; Frisian,
199, 201-207 ; Saxon, 214, 215,
219, 224 ; of Chamavi, 229
Lombardic tribal custom com
pared with Scanian as to family
holdings, 292-296
London, ' De Institutis Lundonie,'
337-344 ; Port of the Greater
Scandinavia in Cnut's time,
339 ; ' Judicia Civitatis Lun
donie,' 415
Lysing (leysing of Norse law), with
same wergeld as A. S. ' Ceorl on
gafol land,' 353-355, 501. See
' Leysing '
Manbot, payment for value of a
man to his lord, 328-332, 359 ;
of freeman and of slave com
pared, 334-335 ; of various
classes, 392
Mancus, weight of 30 dwts., 18, 329
Mark, Norse gold and silver
weight of eight ores or ounces,
234-237; used in Frisia, 207;
half-marks of gold in compact
between Alfred and Guthrum,
353 ; 27 marks of Charlemagne
= 30 of old Norse and Mero
vingian, 256
Marriage, how regarded, 498;
under Cymric custom, 32 ; in
Beowulf, 69-72 ; in Lex Salica,
146; under Alamannic law,
177 ; under Lex Saxonum, 216 ;
under Scanian law, 276-281 ;
under Lombardic law, 294 ;
under Laws of Bretts and Scots,
318; under Kentish custom,
465-466
Mercian law, fragments of, 360-
369; Mercian oaths, 360 j
wergelds, 361 ; rise of ceorl into
thane, 366
Merovingian kings, currency of,
mostly in gold tremisses, see
' Currency '
Mina, gold value of normal
wergeld, 4 ; ancient Eastern of
100 staters, 2, 7 ; of 200 gold
solidi, 6 ; Italica of 20 Boman
ounces, 14, 491; Attica of 16
Boman ounces, 16, 233

Index.

537

Mundbryce or mundbyrd of king,
846, 377, 451 ; of various classes,
377 ; in Kent, 346, 452, 460,
476, 481, 488
Norse tribal custom, 238-276;
personal rett, 240; wergelds
how reckoned and paid, 242-
258 ; wergeld of the hauld odal
man or typical freeman, 96
cows = 200 sol., 259 ; grada
tions in rank, 260-270 ; the ley
sing or freedman, 261-267 ;
odal-sharers of odal land, 271-
276, 284, 504, 508
North peoples law, fragments of,
360-369 ; wergelds in thrymsas
(of 3d.), 363; wergeld of ' hold '
double that of Saxon thane, 363
Nova Moneta of Charlemagne,
11, 179-193, and see ' Currency '
Ordeal in absence of oaths of
kinsmen, 166, 403, 413, 499;
under Frisian law, 203-205
Ore or ounce of 20d. ; Merovin
gian = Boman ounce of 20
silver tremisses of 28'8 w.g.
(& lb. of 6912 w.g.), 10; and so
also Kentish scilling, 443-455 ;
Charlemagne's and later Anglo-
Saxon and Norman ore of 20
pence of 32 w.g. (& lb. of 7680
w.g.), 11-13
Ore, Cnut's of 16d. (^ Anglo-
Saxon lb.), 306, 341 ; divided by
him into 20 smaher pence, 343 ;
used in Laws of Bretts and
Scots, 306
Ore, Norse, of three ortugs = ^
of Boman lb. 6912 w.g., 234-
237
Ortug, of Scandinavia, J ounce =
Greek stater, 233. See ' Ore '
Ox as currency, 1,2; value of,
see ' Animals '
Parage, tenancy in, 513, 525
Pound, Boman of 6912 w.g., 8, 11,
18; Charlemagne's of 7680 w.g.,
11, 18 ; Anglo-Saxon and Nor
man of 7680 w.g., 12 ; North
ern lb. of two marks, 234
Ratio between gold and silver :
Norse of 1:8, 238 ; Merovin
gian 1 : 10, 185 ; Imperial, 1 : 12,
11 ; Charlemagne's (attempted),
1:4. 11, 189; restored Frank

ish, 1:12, 11, 191; Cymric,
1 : 12, 49 ; Irish, 98 ; Bretts and
Scots, 1 : 8, 307
Bomanus possessor, half wergeld
of, 149, 167 ; his res propria,
158, 162
Saxon Laws (Lex Saxonum), 213-
228 ; wergeld of liber 160 sol.,
214 ; wergeld stated in silver,
214 ; gold solidus of 2 tremisses
or bullock, 217
Sccet. See ' Currency '
Scanian tribal custom. The lex
Scania antiqua, family hold
ings, 276-288 ; Scanian wergeld,
291 ; Scanian and Lombardic
custom compared, 292-296
Scilling. See ' Currency '
Scotland, tribal custom in ancient
laws of, 297-302; the Begiam
Majestatem, 302-307 ; Leges
inter Brettos et Scotos, 307-
318 ; wergeld of thane 100 cows,
314 ; rules of kindred, 318, 320
Siclus, silver didrachma or \ oz
of Boman currency, see ' Cur
rency '
Six-hynde class, 371, 392, 397
Soc and sac, 330, 348
Sochemen in Danelaga, 331-332,
522; their services, 332 note
Solidus (gold) of Constantine of
three tremisses, 7, 9 ; of Mero
vingian kings, 1 0 ; of Frisian
custom (2 and 2£ tremisses),
197 ; of Saxon (2 tremisses),
217; (silver) of Charlemagne
' nova moneta,' see ' Currency '
Strangers in blood, how treated
under Cymric custom, 50-54 ;
under Irish custom, 90 ; their
rights increase with growth of
kindred, 51, 90; their half
wergeld, 401-403 ; galanas and
wergeld of, without kindred, goes
to the lord, 54, 478; ordeal
instead of oaths, 166, 403
Thane = twelve-hyndeman, 325 ;
might rise to be an eorl, 368.
See ' King's Thane '
Thrymsa, Northumbrian unit of
cureney = 3d., 362-366
Twelve-hynde and Twy-hynde,
406-416 ; hyndens of oath
helpers, 409 ; full kindred

N N

538

Index.

twelve hyndens of oath-helpers,
409-411 ; twy-hynde class,
originally the kinless class, as
freedmen, 412, 500 ; steps to
higher grade, 365-369, 502
Werborh (wereplegium), 328, 358,
and see ' Hyndens '
Wergeld, death-fine in substitu
tion for blood feud between
kindreds, see ' Beowulf,' and
150; liability of kindred for,
see ' Kindred ; ' normal of 100
head of cattle or gold mina, 3 ;
of 200 gold solidi, 6, 49, 163,
171, 225, 229, 231, 233, 314 ;
of 160 gold sohdi, 1, 167, 172,
214, 232 ; Wessex and Mercian
and Kentish wergelds compared
with Continental wergelds, 436-

439 ; of various tribes, see
names of tribes; of clergy, 170,
177, 382
Wife, see ' Marriage '
Wilisc, Wealisc, Weaih, non-
Anglo-Saxon people, 364-5 ;
with five hides to King's utware,
six hynde, 397 ; Gallo-Boman
Wala, 398; Wallerwente of
Yorkshire, 399; with half
wergelds, 401^403 ; weaih gafol-
gelda, 404 ; Servus Waliscus,
333 ; Wihsc witetheow, 404 :
theow-wealh, 405
Wisigothic Laws, 126-130 ;
Boman influence on, 527
Yardlands of gafolgeldas and
geburs, 393, 422 et seq. ; single
succession to, 517-521

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14 | WORKS OF REFERENCE -

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9
25

OF AUTHORS AND EDITORS.

INDEX
Page

Abbott (Evelyn)
 (T. K.) - -
— (E. A.) -
Acland (A. H. D.)
Acton (Eliza)
Adeane(J. H.) -
AdelborgfO.) -
.EschylusAinger (A. C.) -
Albemarle (Earl of) -
Allen (Grant) -
Allgood (G.) -
Angwin (M. C.)
Anstey (F.)
AristophanesAristotle -
Arnold (Sir Edwin) -
 (Dr. T.) - -
Ashbourne (Lord)
Ashby (H.)
Ashley (W. J.) -
Avebury(Lord) Ayre (Rev. J.) -

25 3
29
21 19
14
9,20 33
29
3. 17
18
25

Bacon - - 7, 14, 15
Baden-Powell (B. H.) 3
Bagehot (W.) 7, 17, 27, 31
Bagwell (R.) ¦ - 3
Bailey (H. C.) - 21
Baillie (A. F.) - 3
Bain (Alexander) 15
Baker (J. H.) - 31
 (Sir S. W.) 9

Page
Balfour (A. J.) - 11, 18
 (Lady Betty) 6
Ball (John) 9
Banks (M. M.) - - 21
Baring-Gould (Rev.
S.)- - - 18,27,31
Barnett (S. A. and H.) 17
Baynes (T. S.) - - 31
Beaconsfield (Earl of) 21
Beaufort (Duke of) ¦
Becker (W. A.)
Beesly (A. H.) -
Bell (Mrs. Hugh)
Bent (J. Theodore) ¦
Besant (Sir Walter)
Bickerdyke (J.)
Bird (G.) -
Blackburne (I. H.)
Bland (Mrs. Hubert)
Blount (Sir E.)
Boase (Rev. C. W.) -
Boedder (Rev. B.)
Bowen (W. E.)
Brassey (Lady)
 (Lord)
Bray (C.) -
Bright (Rev. J. F.) -
Broadfoot (Major W.)
Brown (A. F.) -
 (J. Moray)
Bruce (R. I.) -
Bryce (J.) -
Buck (H. A.)

n, 12

93
12, 13

Page
Buckland (Jas.) 26
Buckle (H. T.) - 3
Bull (T.) - 29
Burke (U. R.) - 3
Burns (C. L.) 30
Burrows (Montagu) 5
Butler (E. A.) 24
Cameron of Lpchiel 13
Campbell(Rev.Lewis) 18,19
Camperdown (Earl of) 8
Cawthorne(Geo.Jas-) 13
Chesney (Sir G.) - 3
Childe-Pemberton(W.S.) 8
Cholmondeley-Pennell (H.) - - 11
Christie (R. C.) - 31
Churchill(W. Spencer) 3, 21
Cicero - - 19
Clarke (Rev. R. F.) - 16
Clodd (Edward) - 18,25
Clutterbuck (W. J.) - 10
Colenso (R. J.) - 3°
Conington (John) - 19
Conway (Sir W. M ) 11
Conybeare (Rev.W. J.)
& Howson (Dean) 27
Coolidge (W. A. B.) 9
Corbin (M.)

Corbett (Julian S.)
Coutts (W.) -
Coventry (A.)
Cox (Harding)

Crake (R*ev. A. D.)
Crawford (J. H.)
 (R.) -
Creed (S.)
Creiffhton (Bishop) -
Crozier (J. B.) -
Custance (Col. H.)
Cutts (Rev. E. L.)

.5,8 8,15 13 5

Dale (T. F.) - 12
Dallinger (F. W.) 5
Dauglish (M. G.) - 8
Davidson (W. L.) 15, 17, 18
Davies (J. F.) - - 19
Dent (C. T.) - n
De Salis (Mrs.) 29
De Tocqueville(A.) - 4
Devas (C. S.) - - 16, 17
Dickinson (G. L.) 4
 (W. H.) 31
Dougall (L.) 21
Dowden (E.) 32
Doyle (A. Conan) 21
Du Bois (W. E. B.)- 5
Dufferin (Marquis of) 12
Dunbar (Mary F.) - 21
Dyson (E.) 21
Ebrington (Viscount) 13
Ellis (I. H.) 13
 (R. L.) 14
Erasmus - - 8, 31
Evans (Sir John) 31

OF
Page 4
- 17, 21 4
4
131313

INDEX
Falkiner (C. L.)
Farrar (Dean) -
Fitzgibbon (M.)
Fitzmaurice (Lord E.)
Folkard (H. C.)
Ford (H.) -
 (W.J.)
Fountain (P.) -
Fowler (Edith H.)
Francis (Francis)
Francis (M. E.)
Freeman (Edward A .)
Fremantle (T. F.) -
Fresnfleld (D. W.)
Frost (G.)-
Froude (James A.) 4,8,10,22
Fuller (F. W.) - - 4
Furneaux (W.) 24
Gardiner (Samuel R.) 4
Gathorne-Hardy (Hon.
A. E.) - - T3
Geikie (Rev. Cunning
ham)
Gibbons (J. S.)
Gibson (C. H.) -
Gleig (Rev. G. R.)
Goethe Going (C. B.)

31 '3 9
20
Gore?Booth (Sir H. W.) 12
Graham (A.) - - 4
 (P. A.) 13
 -(G. F.) - 17
Granby (Marquess of) 13
Grant (Sir A.) - - 14
Graves (R. P.) - 8
Green (T. Hill) 15
Greene (E. B.)- 5
Greville (C. C. F.) 4
Grose (T. H.) - 15
Gross (C.) 4, 5
Grove (F. C.) - 11
 (Mrs. Lilly) - 11
Gurdon (Lady Camilla) 22
Gurnhill (J.) - - 15
Gwilt (J.) - 25
Haggard (H. Rider) 10,22,31
Hake (O.) - - - 12
Halliwell-Phillipps (J.) 9
Hamilton (Col. H. B.) 5
Hamlin (A. D. F.) - 30
Harding (S. B.) - 5
Harmsworth (A. C.) 12
Harte (Bret) 22
Harting(J. E.)- 13
Hartwig (G.) - 25
Hassall (A.) - 7
Haweis (H. R.) 8, 30
Head (Mrs.) - 30
Heath (D. D.) - 14
Heathcote (J. M.) 12
 (C. G.) 12
 (N.) 10
Helmholtz (Hermann
von) - - - 25
Henderson (Lieut-
Col. G. F. R.) - 8
Henry (W.) 12
Henty (G. A.) - - 26
Herbert (Col. Kenney) 13
Herod (Richard S.) - 13
Hiley (R. W.) - 8
Hill (Mabel) 5
Hillier (G. Lacy) 11
Hime (H. W. L.) - 19
Hodgson (Shadworth)i5, 31

Hoenig (F.)
Hogan (J. F.)
Holmes (R. R.)
Holroyd (M. J.)
HomerHope (Anthony)
Horace
Houston (D. F.)
Howard (Lady Mabel)
Howitt (W.) -
Hudson (W. H.)
Huish (M. B.) -
Hullah (J.)
Hume (David) -
(M. A. S.)

AUTHORS
Page
Hunt (Rev. W.) 5
Hunter (Sir W.) - 5
Hutchinson (Horace G.)
11, 13, 31
Ingelow (Jean) 20
Ingram (T. D.) 5

AND EDITORS— continued.

Jackson (A. W.)
James (W.)
Jameson (Mrs, Anna)
Jefferies (Richard) -
Jekyll (Gertrude)
Jerome (Jerome K.) -
Johnson (J. & J. H.)
Jones (H. Bence)
Joyce (P. W.) 5,
Justinian -
Kant (I.) -
Kaye (Sir J. W.)
Kelly (E.)-
Kent (C. B. R.)
Kerr (Rev. J.)
Killick (Rev. A. H.) -
Kingsley (Rose G.) -
Kitchin (Dr. G. W.)
Knight (E. F.) -
Kostlin (J.)
Kristeller (P.)

9
'5
3031312231
25
22, 31 1515 5
15 5
1215
30 5
10, 12 8
30

Page M

Ladd (G. T.) - - 15
Lang (Andrew) 5, II, 12, 14,
18, 20, 22, 23, 26, 32

Lapsley (G. T.)
Lascelles (Hon. G.)
Laurie (S. S.) -
Lawley (Hon. F.)
Lawrence (F. W.)
Lear (H. L. Sidney) -
Lecky (W. E. H.) 5,
Lees (J. A.) -
Leslie (T. E. Cliffe) -
Levett-Yeats (S.)
Lillie (A.l-
Lindley(J.)Loch (C. S.)
Locock (C. D.)
Lodge (H. C.) -
Loftie (Rev. W. J.) -
Longman (C. J.)
 (F. W.) -
 (G. H.) - -
 (Mrs. C. J.)
Lowell (A. L.) -
Lubbock (Sir John) -
LucanLutoslawsk^W.)

5
11, 13 5
12
17
29,31 16, 20 10
17
22 14
25 3114 5
5
II, 1314
11, 13
3°

Lyall (Ec
Lynch (G.)
 (H. F. B.)- 10
Lyttelton (Hon. R. H.) 11
 (Hon. A.) - 12
Lytton (Earl of) 6, 20

- 9,

Macaulay (Lord)
Macdonald (Dr. G.) -
Macfarren (Sir G. A.)
MackaiKJ. W.)
Mackenzie (C. G.)
Mackinnon (J.)
Macleod (H. D.)
Macpherson (Rev.
H. A.) - - 12
Madden (D. H.)
Magniisson (E.)
Maher (Rev. M.)
Malleson (Col. G. B.)
Marchment (A. W.)
Marshman (J. C.)
Maryon (M.) -
Mason (A. E. W.)
Maskelyne (J. N.)
Matthews (B.)
Maunder (S.) -
Max Mulier (F.)

6, 2C

9, 16, ly, 18, 23, 32
May(SirT.Erskine) 6
Meade (L. T.) - - 26
Melville (G. J. Whyte) 23
Merivale (Dean) - 6
Merriman (H. S.) 23
Mill (John Stu"'1 •« "

Millias (J. G.) -
Milner (G.) - 32
Monck (W. H. S.) 16
Montague (F. C.) 6
Moon (G. W.) - 20
Moore (T.) - 25
 (Rev. Edward) - 14
Morgan (C. Lloyd) - 17
Morris (Mowbray) 11
¦(W.) 19, 20, 23, 30, 32

Mulhall (M. G.)
Murray (Hilda)
Myers (F. W. H.)
Nansen (F.)
Nash (V.) -
Nesbit (E.)
Nettleship (R. L.)
Newman (Cardinal) -
Nichols (F. M.)
Ogilvie (R.) -
Oldfield (Hon. Mrs.)
Oliphant (N.) -
Onslow (Earl of)
Osbourne (L.) -
Paget (Sir J.)
Park (W.)
Parker (B.)
Passmore (T. H.) -
Payne-Gallwey (Sir
R.) - - -
Pearson (C. H.)
Peek (Hedley) -
Pemberton (W. S.
Childe-) - - 8
Pembroke (Earl of) - 12
Pennant (C. D.) 13
Penrose (Mrs.) - 26
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— — (Lady Alice)
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15
23
8,31 19

9
M
32 32
12, 14 9

23 7
'910
19
11,13 161616 '9
23

Page 7

Sheppard (E.) -
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Thomas (J. W.)
Thornhill (W. J.)
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Toynbee (A.)

3224
24 16 17 9
26

Trevelyan (Sir G. O.) 6, 7, 8

(G. M.)
Trollope (Anthony) -
Turner (H. G.)
Tyndall 0.)
Tyrrell (R. Y.) -
Unwin (R.)

7
2432
8, 1019
32

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MESSRS. LONGMANS & CO.'S STANDARD AND GENERAL WORKS. 21

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22 MESSRS. LONGMANS & CO.'S STANDARD AND GENERAL WORKS.

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23.

Fiction, Humour, &e. — continued.

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Morris (William) — continued.
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Three Northern Love Stories,.
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\* For Mr. William Morris's other
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A Glimpse of the World
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2.4 MESSRS. LONGMANS & CO.'S STANDARD AND GENERAL WORKS.

Fiction, Humour, &c— continued.

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Walford (L. B.) — continued.
The Baby's Grandmother. Cr.
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The Outdoor World; or The
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(Natural History, &e.).
Furneaux (W.) — continued.
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25

Popular Science (Natural History, &e.)— continued.

Hartwig (George)
The Sea and its Living Wonders.
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Proctor (Richard A.).
Light Science for Leisure Hours
Familiar Essays on Scientific Subjects.
Vol. I. Crown 8vo., 3s. bd.

Proctor (Richard A.) — continued.
Bo ugh Wa ys ma de Smoo th. Fam i -
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Leisure Beadings. By R. A. Proc
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%* For Mr. Proctor's other books see pp. 14
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Works pf
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Reference. Maunder (Samuel) — continued.
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27

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28 MESSRS. LONGMANS & CO.'S STANDARD AND GENERAL WORKS.

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MESSRS. LONGMANS & CO.'S STANDARD AND GENERAL WORKS. 29

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Management, &e.
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3°

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MESSRS. LONGMANS & CO.'S STANDARD AND GENERAL WORKS. 31

Miscellaneous and Critical Works.

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