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

FOOTNOTES

[1] Origin of Currency and Weight Standards, Camb. U. Press, 1892.

[2] For convenience I adhere throughout to reckoning in wheat-grains. Professor Ridgeway informs me that three barleycorns were equated with four wheat-grains, and that a passage in Theophrastus shows that in the fourth century B.C. 12 barleycorns = obol and 12 obols = the stater. The Greek diobol = therefore 24 barleycorns, i.e. 32 wheat-grains, and the stater = 144 barleycorns, i.e. 192 wheat-grains. The reader will understand that as Romans, Celts, Anglo-Saxons, and Normans reckoned in wheat-grains, there will be great convenience in adhering throughout to wheat-grains in this inquiry. And further the theoretic building up of weights in wheat-grains was preserved traditionally more easily than the actual standards of weight.

[3] The range of the variation in the actual weight of the stater as a coin (without necessarily implying variation in the theoretic weight in wheat-grains) is given by metrologists as follows:

	Grammes
Babylonian	8·18
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

[4] Kinship &c. in Arabia, p. 53.

[5] Ordinances of Manu, xi. pp. 128-131.

[6] Sections 8 and 11.

[7] Herod. v. c. 77 and vi. c. 79.

[8] The latest results of metrological research are most conveniently stated by Hultsch in his Die Gewichte des Alterthums nach ihrem Zusammenhange dargestellt, Leipzig, 1898. And Mr. F. G. Hill, of the British Museum, has recently issued an excellent hand-book of the Greek and Roman coins containing information on these points.

[9] The relation of the ancient Gallic gold currency to the subject of wergelds is interesting and important, but cannot be enlarged upon here.

[10] For the authorities for the following short statement see infra, Chap. VII. s. 1.

[11] Besides these silver tremisses some silver scripula were issued, but it is with the sceatts mainly that we have to do. In connection with the next section, however, the fact that the scripulum was current as a coin is worth notice.

[12] Metrologicorum Scriptorum Reliquiae (Lipsiae, 1866).

[13] Hultsch, Die Gewichte des Alterthums, pp. 53 and 203.

[14] Metr. Script. ii. 131-139.

[15] Hultsch, Metr. Script. i. pp. 66 and 87.

[16] Athelstan, vi. 6, s. 2 and vi. 3; and see Schmid’s Glossary under Geldrechnung.

[17] There can hardly have been at Tours at this moment any other Liutgarda than the queen under Alcuin’s spiritual charge.

[18] For this incident see Alcuini Epist. xxv.

[19] Metr. Script. ii. 31, 99, 114, &c.

[20] For the references to the Codes and Extents, and authorities for the statements in this summary, the reader must be referred to the former volume. But for additional statements full references will be given. Where not otherwise stated, the figures refer to the two volumes of Ancient Laws of Wales.

[21] Prof. Rhys informs me that da in Carnarvonshire local dialect still means ‘cattle,’ while in other parts of Wales it has the wider meaning of ‘goods.’

The allotment of cattle involved grazing rights, and often separate homesteads. Accordingly in the Denbigh Extent we find that so and so ‘habet domum’ or ‘non habet domum.’

This dependence for maintenance of the boy upon the higher chieftain is indirectly confirmed by the Extents, which mention among the chieftain’s rights the ‘fosterage of youths’ &c. See Tribal System in Wales, p. 169.

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

[22] i. pp. 167-169.

[23] p. 543.

[24] p. 549, s. 19.

[25] i. 96 and 545.

[26] If the sister was married to an alltud and her son killed a person, ? of the galanas fell on the mother’s kindred (i. p. 209), but there was no liability beyond the gwely or second cousins (ii. p. 657).

[27] ‘The galanas of every female shall always be to the kindred,’ i. p. 241.

[28] ‘Three cases wherein a wife is to answer without her husband. The first is for homicide,’ i. p. 463. But for accessories to murder she and her husband pay her camlwrw and derwy, i. p. 105; and she can claim spearpenny, i. pp. 103, 705; ii. p. 65.

[29] i. pp. 231-3, 409, 517, 747; ii. p. 695. On separation husband and wife divided the cattle and most other things equally.

[30] ii. pp. 281-2, 740.

[31] i. p. 765; ii. p. 269.

[32] ii. p. 693.

[33] ii. p. 531.

[34] i. p. 415.

[35] i. pp. 259, 447.

[36] Tribal System in Wales, App. p. 59, &c.

[37] The principal tref as contrasted with summer bothy on the mountains.

[38] ii. p. 563.

[39] i. p. 795.

[40] Fol. 280.

[41] i. pp. 283, 499.

[42] i. pp. 111, 459, 745; ii. p. 257.

[43] i. pp. 201, 535.

[44] ii. p. 493.

[45] i. p. 141.

[46] i. p. 229.

[47] For the following statements see Venedotian Code, i. p. 223, &c.; and Dimetian Code, i. p. 407, &c.

[48] Sisters paid for their possible children, and if these children were of age they paid instead of their mothers. After the age at which they could not have children, the sisters did not pay (i. p. 99). That the daughter after twelve was independent of her father with da of her own, see i. p. 205.

[49] i. p. 229.

[50] i. pp. 77, 103.

[51] ii. p. 693.

[52] i. p. 747.

[53] i. p. 231.

[54] i. p. 271.

[55] i. p. 565.

[56] English Village Community, c. ix.

[57] For details and references to the Codes I must refer the reader to Chap. V. of The Tribal System in Wales.

[58] See infra, p. 319.

[59] In the quotation of passages from Beowulf I have mostly followed Professor Earle’s translations.

[60] See Structure of Greek Tribal Society, by H. E. Seebohm, chap. ii.

[61] Nefan cannot mean son or grandson, for Hygelac was his father and his grandfather was Hrethel.

[62] The references in this chapter are to the four volumes of The Ancient Laws of Ireland. I regret very much not to have had the advantage of vol. v. edited by Dr. Atkinson and not yet published, but I am greatly indebted to him for his kind help and advice on many difficult points.

[63] iv. p. 259. This passage is abridged.

[64] iii. p. 69.

[65] Ibid. and iv. 245-248.

[66] Cours de LittÉrature Celtique, tome vii. Etude sur le Droit Celtique, tome i. p. 186.

[67] The view here taken, that the four fines in the geilfine division are classes or grades of relationship, makes more intelligible the rules laid down in the Book of Aicill (iii. 331-335), especially the one which determines that ‘if one person comes up into the “geilfine” so as to make it excessive, a man must go out of it into the “deirbhfine,” and a man is to pass from one division into the other up as far as the indfine, and a man is to pass from that into the community.’ Obviously, as a fresh generation comes into the nearest hearth, a generation at the top naturally moves out of the group. The great-grandfather becomes a great-great-grandfather, and so on.

[68] i. p. 263, and iv. p. 245.

[69] iv. p. 245.

[70] iii. p. 99.

[71] p. 101.

[72] ii. p. 195.

[73] iv. p. 283.

[74] Dr. Atkinson has kindly given me a reference to MS. H. 3-18, 237 and 485, the former of which ends its paragraph on ‘sencleithe’ thus:—‘If he serve from that onward, till the fifth man come and during the time (his time?), then he is a sencleithe and he cannot go from the heirs [comarba] for ever after.’

[75] See Senchus Mor, i. p. 76 and iii. p. 43.

[76] i. pp. 65-77.

[77] Round Towers of Ireland, p. 219.

[78] Fol. 181, b.b. This will be inserted in Dr. Atkinson’s vol. v. of the Brehon Laws.

[79] In one MS. ‘six score ounces.’

[80] Petrie, Round Towers of Ireland, p. 214.

[81] Tripartite Life of St. Patrick, ii. p. 372.

[82] Ibid. i. p. 212.

[83] Altilia, i.e. fattened heifers, Skeat, sub voce ‘heifer.’

[84] The samaisc heifer of the Brehon Laws being ½ oz., and the dairt heifer ? oz., the fattened heifer would naturally take the middle place between them as ¼ oz.

[85] Wasserschleben refers these canons to the fifth century Synod under St. Patrick.

[86] ‘Si colirio indiguerit’ seems to be equivalent to the Irish ‘that requires a tent.’ But Dr. Atkinson informs me that the Irish word literally means ‘a plug of lint.’

[87] Compare this clause with the ‘Book of the Angel,’ Tripartite Life, ii. p. 355. ‘Item si non receperit prÆdictum prÆsulem in hospitium eundem et reclusserit suam habitationem contra illum, septem ancillas (cumala) sive septem annos poenitentiÆ similiter reddere cogatur.’

[88] See Senchus Mor, i. p. 43: ‘Equal dire-fine for a king and a bishop, i.e. equal honour-price to the “rig tuath” and the bishop, i.e. of the church of a “rig tuath.”’

[89] P. 141.

[90] i. p. 127.

[91] Poenitentiale Vinnicii, s. 23; Wasserschleben, p. 113.

[92] Tripartite Life, p. 378 n.

[93] Questions Historiques, pp. 105-117.

[94] Pertz, Bluhme’s preface, p. 498.

[95] Bindung’s Das Burgundisch-Romanische KÖnigreich von 443 bis 532 n. Chr. chap. i.

[96] Lib. vii. Tit. iii. s. 3.

[97] Lib. vi. Tit. v.

[98] Hessels and Kern, Codex x. Tit. lxi.

[99] Brunner (Sippe und Wergeld, p. 31) prefers the reading of the other codices, ‘on either side,’ but the principle is the same; the fisc gets whatever share lapses, whether it be ¼ or ½.

[100] Hessels and Kern, Tit. ci., p. 412. Pertz, Legg. 11, 5.

[101] This translation of the final clause does not materially vary in meaning from that of Brunner, Sippe und Wergeld, p. 34.

[102] Brunner, Sippe und Wergeld, p. 34.

[103] Sippe und Wergeld, p. 34.

[104] Sippe und Wergeld, p. 36. ‘Es dÜnkt mir sehr wahrscheinlich, dass auch in der Lex Salica unter den ‘tres proximiores’ Verwandte von drei verschiedenen Parentelen gemeint sind.’

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

[105] Codices 3, 7, 8, 9 have ‘de quod non.’

[106] Tit. xxix.

[107] See his essay on this subject in his ProblÈmes d’Histoire, pp. 361 &c.

[108] Brunner, in his Sippe und Wergeld, shows this clearly, pp. 1-3.

[109] Blumenstock, i. 266.

[110] Tit. lvi.

[111] Tit. vi.

[112] The clause De reipus is very important in regard to some of these points. But the subject is too difficult a one to be discussed here.

[113] GuÉrard, on the other hand, says: ‘C’est l’alleu d’un Salien dÉfunt que la loi divise en deux parts: dans l’une est la terre salique, et dans l’autre la terre non salique; mais ces deux terres sont Également partie de la succession du dÉfunt.’ Polyptique d’Irminon, i. p. 487. But he does not seem to have noted the use of ‘land’ unqualified in the saving clause of the first 4 codices.

[114] Erbenfolge, &c., pp. 12-14.

[115] Deutsches Wirtschaftsleben, i. p. 39.

[116] Polypt. d’Irminon, i. p. 495.

[117] English Historical Review, January 1893.

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

[119] See note in Hessels and Kern, and Amira in his Erbenfolge, p. 16 (MÜnchen, 1874).

[120] See supra, pp. 26, 27.

[121] This is repeated, ii. p. 391. ‘The argluyd takes him as a son, and if he die receives his da unless he leaves a son.’ Up to 14 his father was his ‘argluyd.’

[122] Sohm, in his preface to the Lex in Pertz (dated 1882), p. 188, concludes that this clause and clause 36 must be referred to the sixth century. There is a Formula in Marculf’s collection in which instructions are given to a newly appointed official, inter alia, to judge Franks, Romans, Burgundians, and those of other nations ‘secundum lege et consuetudine eorum’ (Marc. Form., Lib. i. 8.)

[123] In the Burgundian Law the wergeld is 150 solidi; in the Alamannic Law, 160 solidi; in the Bavarian law, 160 solidi. That this was also the wergeld of the Frisian and Saxon see infra.

[124] See Merkel’s preface to the laws in Pertz, p. 14.

[125] In the Burgundian laws the division is into ‘optimatus’ with a wergeld of 300 sol., ‘mediocris’ with 200 sol., and ‘minores ’ with 150 sol.

[126] Introduction, p. iv.

[127] Martini, Metrologia, sub ‘Roma.’ See also TraitÉ de Numismatique du Moyen Age, par A. Engel, vol. i. p. 222.

[128] Pertz, p. 119.

[129] Pertz, p. 149.

[130] Hludowici et Hlotharii Capitularia, Pertz, p. 251.

[131] De Mirac. S. Martini, l. i. c. 31. Mention of the aureus occurs twenty-four times in the index to his works. Mention of trientes occurs twelve times, and of argentei five times.

[132] In some codices placed at the end of Lib. xii., Tit. ii. See edition of Walter (1824), p. 669.

[133] ‘Ex Isidori Etymologiarum Libris, c. De ponderibus.’ Hultsch, ii. 113.

[134] Twelve argentei (12 × 72 w.g.) = 864 w.g., or at 1:10 the Merovingian solidus of 86·4 w.g.

[135] Pertz, p. 18.

[136] Pertz, p. 31.

[137] Pertz, p. 39.

[138] In this Capitulare three grades of payments are stated, a pound, a half-pound, and five solidi. Five solidi in this scale should be ¼ lb., and in wheat-grains the scale would be 6912, 3456, and 1728. 1728 wheat-grains is 5 solidi of 12 denarii of 28·8.

[139] Capitulare Mantuanum, s. 9, ‘De moneta: ut nullus post Kalendas Augustas istos dinarios quos modo habere visi sumus dare audeat aut recipere: si quis hoc fecerit, vannum nostrum conponat.’

[140] BeitrÄge zur Geschichte des Geld- und MÜnzwesens in Deutschland.

[141] Forty argentei or drachmÆ to the solidus would have meant a ratio of about 1:30.

[142] Polyptique d’Irminon, Introduction, i. 151. See also No. 82 of St. Gall Charters (Wastmann, i. p. 78), in which is an annual payment of ‘i bovem v solidos valentem’ sub anno A.D. 778.

[143] Pertz, p. 85.

[144] Pertz, p. 114.

[145] Pertz, p. 116.

[146] Pertz, p. 72. Refusing to receive the new denarii must have meant as 12 to the solidus, for the new denarii themselves were heavier than the old ones, 32 wheat-grains instead of 28·8.

[147] Pertz, p. 494. Karoli II. Edictum Pistense, A.D. 864: Ut in omni regno nostro non amplius vendatur libra auri purissime cocti, nisi duodecim libris argenti de novis et meris denariis.

Illud vero aurum quod coctum quidem fuerit, sed non tantum ut ex deauratura fieri possit eo libra una de auro vendatur decem libris argenti de novis et meris denariis.

[148] TraitÉ de Numismatique du Moyen Age, par Arthur Engel (Paris, 1891), vol. i. pp. 329-332.

[149] Sohm, in his preface to the Ripuarian law in Pertz, against his own former opinion, concludes that clause xxxvi. did go back to the sixth century, and was originally a part of the Lex (p. 188).

[150] See Richthofen’s preface to the Frisian Laws in Pertz, p. 631.

[151] They appear in the ‘Additio Sapientium,’ Tit. ii., clauses lxiii. and lxxviii.

[152] ‘Inter Wisaram et Laubachi, duo denarii novi solidus est.’

[153] ‘Inter Laubachi et inter Flehi, tres denarii novÆ monetÆ solidum faciunt.’

[154] ‘Inter Flehi et Sincfalam solidus est duo denarii et dimidius ad novam monetam.’ That the word denarius was applied to gold as well as silver coins, see mention of the ‘gold penninck’ of Gondebald in Chronijck van Vrieslandt, sub A.D. 739.

[155] ‘Inter Laubachi et Wisaram weregildus nobilis 106 solidi et duo denarii, liberi 53 solidi et denarium, liti 26 solidi et dimidius et dimidius tremissis.’

[156] ‘Si nobilis [or liber or litus] nobilem occiderit, 80 solidos componat; de qua muleta duÆ partes ad hÆredem occisi, tertia ad propinquos ejus proximos pertineat … liberum solidos 53 et unum denarium solvat … litum 27 solidos uno denario minus componat domino suo, et propinquis occisi solidos 9 excepta tertia parte unius denarii.’

[157] ‘Inter Fli et Sincfalam weregeldus nobilis 100 solidi, liberi 50, liti 25 (solidi denarii 3 novÆ monetÆ).’

[158] ii. lxxxiv.

[159] Tit. vi.

[160] Engel’s TraitÉ de Numismatique du Moyen Age, i. 233 and 329.

[161] Martini’s Manuale de Metrologia, sub ‘Emden.’ And compare Ridgeway, p. 871. He shows that in Italy and Sicily 10 sheep = 1 cow.

[162] It is true that in the clauses trebling the amounts for wounds it is not directly stated that the wergelds were also trebled; but the use of the words in Tit. I., ‘in simplo,’ suggests that it may have been so; whilst the facts that the triple payment for the loss, e.g. of the eye, which in the title De Dolg was a half wergeld, would otherwise exceed the full wergeld, and that, in the one case in which in the ‘De Dolg’ the whole wergeld was payable, the amount in the Additio is the treble wergeld, make it almost certain that it was so, otherwise the injury would be paid for at three times the value of a man’s life.

[163] 4608 × 3 = 13824, i.e. 160 solidi of 86·4 wheat-grains. The wergeld of the Island of Gotland was also 3 gold marks or 160 solidi of Merovingian standard. See also on the whole question Dr. Brunner’s article ‘Nobiles und Gemeinfreie der Karolingischen Volksrechte’ in Zeitschrift der Savigny-Stiftung &c., vol. xix.

[164] It would exactly equal 200 of the local solidi of two tremisses at a ratio of 1:8, or 160 solidi of 80 wheat-grains instead of 86·4.

[165] Pertz, p. 83.

[166] Pertz, p. 84.

[167] Pertz, p. 34.

[168] Pertz, p. 84.

[169] Pertz, p. 118.

[170] See Du Cange sub voce ‘Pecunia,’ and the cases there mentioned in which the word = pecudes, grex, &c.

[171] See Études sur la Lex dicta Francorum Chamavorum et sur ‘Les Francs du Pays d’Amor,’ par Henri Froidevaux. Paris, 1891, chap. ii.

[172] It has already been stated that the wergeld of the Island of Gotland was three gold marks or 160 Merovingian solidi. But owing to the late date of the Gotland laws it cannot be regarded as certain that the amount was the same at the date of the Ripuarian laws.

[173] The depreciation in weight cannot have been the result of ignorance of the Roman standard. We learn from the excellent table given by Montelius in his Remains from the Iron Age of Scandinavia that the gold solidi of the Eastern Empire found their way into the Islands of Gotland, Oland, and Bornholm in considerable numbers, between A.D. 395 and 518. He shows that, while no silver coins of the Republic or before Nero have been found in Scandinavia, coins belonging to the silver currency of Rome after Nero found their way northwards in considerable numbers. Of Roman coins A.D. 98-192 only four gold coins are known to have been found and 2304 silver coins. Then the gold currency begins, and of dates between A.D. 235-395, sixty-four gold coins have been found and only one solitary silver coin. Lastly came the gold currency of the solidus of Constantine and his successors A.D. 395-518, and of this period 286 gold coins and one silver coin are recorded as having been found in Scandinavia. It is clear, then, that the Roman standard as well as the Roman system of division of the lb. was known in the North. For a long period no doubt the chief trade of the Baltic was with the Byzantine Empire and the East.

[174] Die Entstehungszeit der Älteren GulathingslÖg von Dr. Konrad Maurer, p. 5.

[175] The Reksthane is an official, and quite a different person from the BÓnde.

[176] The Árborinn man seems to be the same as the Aettborinn man, i.e. ‘a man born in a kindred.’

[177] Elsewhere called the Odal-born-man.

[178] The hauld seems to have been the same as the odal-born man.

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

[180] The Nefgildi-men include the slayer’s mother’s father, daughter’s son, mother’s brother, sister’s son, father’s sister’s son, mother’s sister’s sons, son’s daughter’s son, daughter’s daughter’s son, brother’s daughter’s son, sister’s daughter’s son.

[181] 4608 × 30 = 138240, and this divided by 8 = 17280 w.g. of gold, i.e. 200 gold solidi of 86·4 w.g.

[182] The following is from the Venedotian Code, i. p. 179. ‘The ecclesiastical law says that no son is to have the patrimony but the eldest born to the father by the married wife: the law of Howell, however, adjudges it to the youngest son as well as to the oldest (i.e. all the sons), and decides that sin of the father or his illegal act is not to be brought against a son as to his patrimony.’ Bastards were not excluded till the Statute of Rothllan.

[183] ‘Geschlecht und Verwandtschaft im alt-norwegischen Rechte,’ in the Zeitschrift fÜr Social- und Wirthschaftsgeschichte, vol. vii. (Weimar). To this essay I am much indebted.

[184] Some authorities infer from this that the parents alone were put in the grave. K. von Maurer thinks only the children, and apologises for it as ‘nur eine aus grauer Vorzeit Überlieferte AntiquitÄt.’

[185] SkÅne, being only divided from the island of Zealand by the Sound, during the Viking period belonged to Denmark. It afterwards became a Swedish province, being finally ceded by Denmark in 1658.

[186] The various views upon the relation of the two versions to each other are very usefully discussed in the introduction to M. Beauchet’s Loi de Vestrogothie (Paris, 1894), pp. 67-75. The Latin version was published in 1846 at Copenhagen as Vol. I. of the Samling af Danske Love and both Latin and Danish versions in Dr. Schlyter’s Corpus Juris Sueo-Gotorum antiqui, Lund. 1859.

[187] See Du Cange, s. v. ‘Moventes’ = pecudes.

[188] ‘Filius-familias’ in another MS.

[189] As to the fÆlagh or partnership between husband and wife, see the Gulathing Law, 53. The word fÆlagh seems to be equivalent to the ‘definitio’ of the Latin text, the definitio of the property being made at the time of the marriage. The word seems to be allied to the English word ‘fellowship.’ See Skeat, sub ‘fellow,’ who refers it to Icelandic ‘felag,’ literally ‘a laying together of property.’

[190] See Untersuchungen zur Erbenfolge &c., Julius Ficker, ii. p. 143: ‘Gulathingsbuch und Frostathingsbuch kennen keinen Eintritt der SohnessÖhne in das volle Recht des Parens.’

[191] Beauchet, p. 60.

[192] Addition F. 1.

[193] Skanska StadsrÄtten, s. 43.

[194] See I. s. 92 of the Danish version. The word ManbÖtÆr = mulcta homicidii, Schlyter, Gloss. sub voce.

[195] See Ancient Laws of Scotland, preface, p. 42.

[196] Ibid. i. 8.

[197] These extracts are abridged and put into modern English.

[198] Compare the colpindach with the Irish ‘colpach heifer.’ In the Crith Gabhlach, p. 300, the Irish text has the word colpdaig translated ‘colpach heifer.’ Probably the xxix should be ix??, i.e. 180. See Ancient Laws of Scotland, p. 270 (red paging), as to the next clause.

[199] ‘Oc-thigernd’ = ‘Jung herr,’ Windisch, p. 757.

[200] Scotland under her early Kings, i. p. 258 n., and ii. p. 307.

[201] Ancient Laws of Scotland, i. p. 233.

[202] History of English Law, Pollock and Maitland, i. pp. 145 and 202. There is an elaborate comparison of this Scotch treatise with Glanville’s in the Ancient Laws of Scotland commencing at p. 136 (red), which is very helpful.

[203] Book of Deer, preface, p. lxxxi. Toshach (toisech). The two officers in a townland were the mormaer and the toisech. Ced in Irish = hundred. Tosh-ced-erach possibly may have meant ‘head of the hundred.’

[204] See infra, c. xi.

[205] Robertson’s Historical Essays, p. 47.

[206] See preface to the Ancient Laws of Scotland.

[207] Gulathing law, s. 152.

[208] See Windisch, WÖrterbuch, sub voce ‘ter-fochrice,’ also ‘fo-chraic.’

[209] Vol. i. p. 655.

[210] This passage is from the last clause in the so-called treaty between Edward and Guthrum, ‘when the English and Danes fully took to peace and to friendship, and the Witan also who were afterwards, oft and unseldom that same renewed and increased with good.’ Thorpe, p. 71; and see Schmid’s Einleitung, p. xlii.

[211] 120s. of 5d. = 50s. of 12d.

[212] Three marks are double 12 ores.

[213] See the instances of services of sochemen given by Mr. Round in his invaluable chapter on the Domesday book in his Feudal England, pp. 30-34, from the ‘Ely placitum’ of 1072-1075: ‘Qui quotiens abbas preceperit in anno arabunt suam terram’ &c. And again quotienscunque ipse prÆceperit in anno arabunt’ &c. These are services of the sochemanni of Suffolk and Norfolk ‘qui non possunt recedere.’

[214] Cf. Ine, 74. The xls. to be paid for the ‘Waliscus’ slave who had committed homicide may be double value by way of penalty.

[215] Laws of Cnut, s. 63 and s. 66.

[216] Mr. Keary’s Introduction to the Catalogue of the Coins in the British Museum, Anglo-Saxon series, vol. ii. p. lxxxi.

[217] Engel, vol. ii. p. 849 et seq.

[218] Introduction, vol. ii. p. lvii.

[219] The word is used in the sense of mint-master or money coiner. See Du Cange, sub voce ‘Monetarius.’

[220] The Anglo-Saxon pound of 240 pence or 364 grammes divided by fifteen = 24·2 grammes.

[221] The normal weight of the English penny of 32 wheat-grains was 1·51 grammes. The coins of Cnut’s predecessors sometimes fully reached this standard, though oftener somewhat below it. The exact weight of 1/20 of the Danish ore would be 1·21 grammes, and Cnut’s silver pence seem to aim at this weight. Out of 574 silver pence of Cnut described in the Catalogue of the British Museum 400 weigh between ·972 and 1·23 grammes. Only 1½ per cent. are of greater weight. Ethelred’s silver pence were not by any means generally of full standard of 32 wheat-grains or 1·51 grammes, but still, out of 339 in the British Museum 25 per cent. are fairly up to this standard and 90 per cent. are above the weight of the new silver pence of Cnut—1/20 of his ore. Cnut also reduced the size of the pence. See the B. M. Catalogue plates.

[222] ‘Grith’ seems to be a Danish word of nearly the same meaning as ‘frith.’ See Schmid’s Glossary, sub voce.

[223] This is in accordance with Ine, 6.

[224] Laws of Ethelred, ix. (Thorpe, p. 145).

[225] Thorpe, p. 124.

[226] MS. G. British Museum, Cott. Nero A. 1. fol. 5.

[227] Thorpe, p. 141, Schmid, Anhang iv.

[228] Compare Æthelstan, iv. 4.

[229] This, from the Kentish Laws, was correctly quoted.

[230] Schmid, Anhang xii.

[231] Pollock and Maitland, i. p. 20. But see Laws of King Edmund, s. 4, ‘On Blood-shedding.’ ‘Also I make known that I will not have to “socn” in my “hirede” that man who sheds man’s blood before he has undertaken ecclesiastical “bot” and made “bot” to the kindred,’ &c. See also in s. 6 the use of the words ‘mund-brice and Ham-socn.’

[232] Another reading has xxx. See Schmid, p. 206. The Latin version has xxv, and the quotation in the Laws of Henry I also has xxv.

[233] 25 × 240 = 6000 pence = 1200 Wessex scillings of 5d.

[234] Catalogue of English Coins, Anglo-Saxon series. Introduction, p. xxxi, to vol. ii.

[235] Thorpe (p. 75) appends this clause to the so-called Laws of Edward and Guthrum. But Schmid considers it as a fragment and places it in his Anhang vii.

[236] Schmid, Anhang vii. 2; Thorpe, p. 79.

[237] A ceorl’s wergeld is cclxvi thrymsas, i.e. cc scillings by Mercian law. 266? × 3 = 800 pence or 200 Mercian scyllings of 4 pence.

[238] From the text of MS. D.

[239] The fragment itself is a combination of two or more. But the statement of wergelds in thrymsas seems to unite them. Schmid also points out that the eorl had not yet superseded the ealdorman. See Einleitung, p. lxv.

[240] 2000 thrymsas of 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 gesithcund status. And the use of the word ‘gesithcund’ seems to throw back the original date of these clauses to that of Ine’s law, the word not being used in later laws. See Schmid’s Glossary, sub voce ‘Gesith.’

[241] I.e. of pure silver. Compare the same phrase ‘de novis et meris denariis’ in the Edictum Pistense, A.D. 864, quoted supra, p. 191, n.

[242] See supra, p. 344.

[243] Ancient Laws of Ireland, vol. iv. p. 227.

[244] See supra, p. 345.

[245] Ine came to the throne in A.D. 688, and Alfred’s treaty with Guthrum was in A.D. 880.

[246] See Schmid’s Glossary sub voce ‘EideshÜlfe.’ There is only one mention of oaths of so many hides in the later Anglo-Saxon laws, viz. in Alfred, s. 11, in which it is stated that a woman must clear herself from a charge of previous unchastity with 60 hides.

[247] The monk’s oath was one fourth of the priest’s in value: so 400 argentei = one fourth of 800 sicli.

[248] See Schmid’s introduction, where he states his reasons for placing Ine’s Dooms before Alfred’s in his edition of the Laws.

[249] This is repeated in Henry I. lxix.

[250] Schmid, Anhang ii.

[251] Schmid, Glossary, sub voc. ‘Die Britischen Einwohner von Cumberland.’ But the mention of York is conclusive.

[252] See Schmid’s note on this passage, and see also Liebermann’s translation.

[253] Thorpe, p. 150; Schmid, Anhang i.

[254] The only mark of the geographical position of the district is that in the final clause: ‘Formerly the Went-sÆtas belonged to the Dun-sÆtas, but more properly they belong to the West Saxons; there they shall give tribute and hostages.’

[255] Translated in the Latin version by ‘corium,’ the meaning probably being that 12 scillings would buy off a scourging.

[256] In the Laws of Henry I. (lxx. s. 5) the ‘theow-wealh’ is translated ‘servus Waliscus,’ and is worth double the ordinary slave, unless the amount be a double penalty.

[257] The usual explanation of these terms is that they are derived from the number of shillings in the wergeld. Mr. Earle in his valuable Handbook to the Land Charters &c. (p. 1) considers ‘hynde’ to be an old form of ‘ten’ and to refer to the number of soldiers of whom the twelve-hynde and six-hynde men were captains. ‘The former was a captain of 120 and the latter of 60.’ Neither of these explanations seems to me to be satisfactory.

[258] This view that the single oath of the twelve-hyndeman was reckoned as a 10 hide oath is confirmed by the translation in the Latin of the Quadripartitus of Ine’s Laws, s. 46. The Anglo-Saxon ‘Þonne sceal he be lx hyda onsacan,’ is translated by ‘tunc debet per lx hidas i.e. per vi homines abnegare.’ And in s. 19 ‘potest jurare pro lx hidis i.e. pro hominibus vi.’ Schmid remarks on these passages: ‘Hiernach wÜrde also jeder Eideshelfer 10 Hiden vertreten.’

[259] Schmid, p. 157; Thorpe, p. 97.

[260] Judicia Civitatis LundoniÆ, c. 8, s. 2; Ath. L. vi.

[261] Decretum Episcoporum et aliorum sapientum de Kancia de pace observanda. Ath. L. iii.

[262] Birch, No. 102, A.D. 701.

[263] Ib. 113, A.D. 705.

[264] Ib. 142, A.D. 725.

[265] Hist. Eccl. lib. iii. c. 24.

[266] Glossary, sub voce ‘Gesith,’ and see Bede, iii. 14 and 22, iv. 4 and 10, and v. 4 and 5.

[267] Bede, ii. c. ix.

[268] English Village Community, chap. v.

[269] See Transactions of the Royal Historical Society, New Series, vol. xiv.

[270] English Village Community, p. 117 et seq.

[271] Birch, 412.

[272] Roxburgh Club, p. 138.

[273] Compare Ærdian, to inhabit; and so burbÆrde and theowbÆrde, as below.

[274] About A.D. 995. Cod. Dip. 1290.

[275] Cod. Dip. mcccliv. See also Liber Eliensis, p. 120.

[276] Alfred, s. 37.

[277] See supra, pp. 180-185.

[278] The difference in spelling will be noticed. The Kentish spelling is mostly scÆtt. Elsewhere the spelling is sceatt.

[279] Schmid, Anhang vii. p. 398.

[280] It cannot be right, I think, to reason the other way with Schmid, that as there were 30,000 sceatts in the King’s wergeld of 120 pounds, there must have been 250 sceatts in the pound and 4·166 sceatts in the Mercian scilling instead of four.

[281] Catalogue &c., Introduction, p. xviii.

[282] ‘We must remember further that many of the coins of the Kings of Mercia were probably likewise struck in Kent, and that when we find, as we do, the same moneyers’ names occurring on the coins of a King of Mercia … and on the coins of Ecgbeorht, the probability is that these moneyers were Kentishmen who struck first for one master of their country and then for the other’ (Ib. p. xvii).

[283] See Schmid’s Glossary, sub voce.

[284] See Laws of Ethelbert, ss. 77, 78 and 79, and 83.

[285] In translating Luke xx. 24 and Mark xii. 15, ‘Show me a penny,’ the word used to translate ‘denarius’ is skatt.

Again, Luke vii. 41, the two debtors, one owing 500 and the other 50 denarii, are translated by Ulphilas as owing ‘skatte finfhunda’ and ‘skatte finftiguns.’

Again in John xii. 5, ‘Why was not the ointment sold for 300 denarii?’ ‘ccc skatti’ are the words used, and so also in the parallel passage Mark xi. 5, ‘thrijahunda skatti.’

In all these cases it seems to be clear that the skatt is the coin. And that it was a silver coin seems to be shown by the use by Ulphilas of the word skatt in reference to the ‘thirty pieces of silver’ in Matt. xxvii. 6-9.

[286] The word occurs seven times in the five Gothic records from Naples and Arezzo generally appended to editions of ‘Ulfilas.’ In the edition of Massmann (Stuttgart, 1857) see vol. ii. p. 810. In that of Heyne and Wrede (Paderborn, 1896) see p. 227 &c.

[287] Schmid, Anhang x. p. 404; Thorpe, p. 76.

[288] This may be doubtful: Sceatta scilling-rim, ‘gold to the worth of 600 scillings,’ Grein, ii. p. 408; sceatta, gen. plural of ‘sceatt,’ nummus, pecunia. Grein, ii. p. 405.

[289] British Museum Catalogue, Anglo-Saxon series, vol. i. xiii.

[290] See Schmid’s Glossary, sub ‘Geldrechnung,’ p. 594. The inference seems to be too strong to be disregarded. Comparing s. 54 with ss. 70-72, the great toe is valued at 10 scillings, i.e. half the value of the thumb in s. 54, viz. 20 scillings. And it is stated in s. 54 that the thumb nail is worth 3 scillings, and in s. 72 that the toe nail is to be paid for at 30 scÆtts, which would be half 3 scillings of 20 sceatts. The other toes are said in s. 71 to be respectively worth half the fingers. The finger nail in s. 71 at 1 scilling compares with the other toe nails at 10 scÆtts in s. 72—again one half. Presuming that the scale of one half is maintained throughout, 30 scÆtts is half 3 scillings and 10 scÆtts half one scilling. The scilling, therefore, must be 20 scÆtts.

This conclusion is strengthened by the graduated scale of payments in ss. 33-36, viz. 50 scÆtts (i.e. 1½ scilling) 3, 4, 10, 20 scillings. See also s. 16, where the scale is 30, 50 (? 60) sceatts and 6 scillings (120 scÆtts). In ss. 58-60 a bruise is 1 scilling, covered 30 scÆtts, uncovered 20 scÆtts. It seems to be impossible to make these figures comport with the Mercian scilling of 4 scÆtts or the Wessex of 5 scÆtts or the Salic solidus of 40 scÆtts. The conclusion must be that the Kentish scilling was of 20 scÆtts.

[291] 576 divided by 10 = 57·6, i.e. two tremisses of 28·8 wheat grains.

[292] Alfred’s words were: ‘But those things which I met with, either of the days of Ine my kinsman, or of Offa King of the Mercians, or of Æthelbryht, who first among the English race received baptism, those which seemed to me the rightest, those I have here gathered together and omitted the others.’

[293] British Museum Cott. Nero A. 1. fol. 5, and supra, p. 346.

[294] British Museum, ibid. fol. 33 b.

[295] See Gulathing, 178.

[296] Compare Cnut’s secular laws, s. 59, on Borh-bryce. In both passages the additional words ‘and three to the archbishop’ do not seem to be taken from Kentish law. It is obvious from the fragment ‘Of Grith and of Mund’ that it was well known that in Kentish law ‘the mund-bryce of the King and the archbishop were the same.’

[297] See also Anhang iv. Schmid, p. 385.

[298] See Schmid, Glossary, sub ‘Geldrechnung,’ p. 594.

[299] Konrad von Maurer’s ‘Ueber AngelsÄchsische RechtsverhÄltnisse,’ in the Kritische Ueberschau, vol. iii. p. 48.

[300] Compare the ‘octogild’ and ‘novigild’ of the Alamannic and other laws. The literal meaning of ‘xii gylde’ seems to be payable with ‘twelve times the gylde.’

[301] The division of the words in the MS. is as follows: ‘Gif cyninges ambiht smiÐ oÞÞe laadrinc mannan of slehÐ medumanleod gelde forgelde.’

[302] So also Grimm in his Deutsche Rechts AlterthÜmer, p. 653, ‘dimidio, nicht moderato, wie Wilk. Übersetzt.’ Compare ‘medeme mynster,’ supra, p. 346, and ‘medeme thegn,’ Cnut, ii. 71, s. 2.

[303] Possibly the King’s servants were otherwise exempt for injuries done in carrying out their work.

[304] Cf. Book of Aicill, p. 267, where injury inflicted in quick driving or at work has only a half fine; ‘the excitement of the work or of quick driving takes the other half fine off them.’ See also the elaborate rules with regard to accidents of the smith in his smithy, p. 187 &c. The general rule stated is ‘that the person who plies the sledge on the anvil is exempt from penalties for injuries arising from the work he is engaged on;’ and again ‘if either the sledge or anvil break, he is exempt for injuries to idlers, and he pays one third compensation to fellow labourers, &c.’ Clerical influence may perhaps be recognised in both the Brehon and Kentish clauses.

[305] That the soul-scot in later times was paid at the open grave see Ethelred, v. 12, vi. 20, ix. 13; C. E. 13.

[306] Compare s. 86 and 87, where ealne weorÐe means a ‘whole worth’ of an esne, and contrast the ‘medume leodgild’ of 100 scillings payable as bot by the lender with the ‘ealne leod’ payable by the slayer.

[307] That the esne was very near in position to the ‘theow’ see Alf. 43, where Church holidays are to be given to ‘all freemen but not to theow-men and esne work-men’—‘butan Þeowum mannum & esne-wyrhtum.’

[308] Liebermann considers that the 300 and 100 scillings are the wergeld of the eorlcundman and the freeman. His translation reads: ‘welcher steht im 300-Scillwergelde’ and ‘welcher im 100-Scillwergelde steht.’ Whether these payments are the wergelds is the point at issue. Schmid, in his note to this passage, favours the view that 300 scillings was the half-wergeld of the eorl and 100 scillings the half-wergeld of the freeman.

[309] xxxv. 5. ‘Si servus alienus aut laetus hominem ingenuum occiderit, ipse homicida pro medietatem compositionis illius hominis occisi parentibus tradatur, et dominus servi aliam medietatem compositionis se noverit soluiturum.’

[310] ‘Ceorlian,’ to marry a husband; ‘wifian,’ to marry a wife. Bosworth, sub voce.

[311] Supra, p. 259.

[312] Supra, p. 176.

[313] Supra, p. 199.

[314] Supra, p. 169.

[315] In the Bavarian and Saxon laws the litus was paid for at one fourth the wergeld of the liber. The inference from this might strengthen the view that the Kentish wergeld of the ceorl could hardly be as low as 100 scillings.

[316] I adhere to this view after careful consideration of the elaborate argument in the Die Gemeinfreien der Karolingischen Volksrechte, von Philipp Heck (Halle, 1900), in reply to the criticism by H. Brunner in the Savigny-Stiftung fÜr Rechtsgeschichte, xix Band, 1899.

[317] 1200 scillings of 4d. with one fourth added = 1200 scillings of 5d.

[318] Deutsche Rechtsgeschichte, i. 225-6.

[319] 60 + 40 Kentish scillings = 1200 + 800 scÆtts. The average 1000 sceatts = 200 Wessex scillings of 5 scÆtts.

[320] Supra, p. 265.

[321] Supra, p. 367.

[322] Supra, p. 322; and Laws of Alfred, s. 27 and 38.

[323] Supra, pp. 415-416.

[324] This is not the place to enter into the details of the Kentish holdings, but reference may be made by way of example to the 5½ ‘sulings’ of ‘Christelet’ in the Black Book of St. Augustine. The suling is still the unit for services and payments. The ‘Suling de Fayreport’ contains 300 acres (and was probably originally a suling and a half), but it is divided into 11 holdings, 8 of 25 acres each and 3 of 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, varying from less than an acre to 44 acres. Several are still occupied by ‘heredes’ of persons of the family ‘de Ores.’ (Cottonian MSS. Faustina, A. 1, British Museum, fol. 567 et seq.) The manor ‘de Ores’ is in the list of those afterwards disgavelled: see Elton’s Tenures of Kent, p. 400.

[325] See Mr. Round’s interesting chapter, ‘Sokemen and their Services.’ (Feudal England, pp. 28-34.)

[326] Domesday Book and beyond, p. 306 et seq.

[327] Ibid. pp. 204-209.

[328] Compare Brunner’s chapter 32, ‘Adel und Freie,’ in his Deutsche Rechtsgeschichte, p. 247 et seq., with Das RÖmische Recht in den Germanischen Volksstaaten, von Prof. Dr. Alfred von Halban (Breslau, 1899), pp. 132, 207, 262, 280, and 294. And see Dahn’s chapter ‘Der Adel,’ p. 88 et seq., in his Die KÖnige der Germanen, Band vi. (Leipzig, 1885).

[329] Compare the tendency to triple divisions in the Kentish Laws: supra, p. 465.

[330] Marculfe, ii. 18 and 16. FormulÆ LindenbrogianÆ, 16. And see F. de Coulanges’ useful chapter on ‘Organisation judiciaire chez les Francs’ in Quelques problÈmes d’histoire (1885).

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