Frederic Seebohm

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

“ 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. For 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. ”

“ 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 solidarity 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 solidarity in landholding of the Norse kindreds of odal sharers tracing back their family possession for four or five generations. ”

“ This exile of the slayer of a near kinsman and forfeiture of his goods to the fisc seems to be almost the only distinct important survival of tribal feeling, apparently neither wergeld nor the death of the slayer being admitted. But in this case the fisc was, as usual, the gainer. Parricide under any system of criminal law [165] would be a capital crime. The pertinacity with which the custom that, being a crime within the kindred, there could be no feud and therefore no wergeld, was adhered to in the midst of manifold changes in circumstances, feeling, and law, is very remarkable. ”

“ 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 ‘Rectitudines,’ 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? ”

“ 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. ”

“ In such matters it is obvious that a good deal must depend upon the view taken of marriage itself at the particular stage of evolution in which the society might be. And it may as well be said at once that we should be quite wrong were we to regard marriage from the Roman point of view, i.e. as a transfer of the woman out of the potestas of her parents into the potestas of the husband. The Cymric example, to begin with, was quite different. The marriage of sisters to tribesmen from whom their sons could inherit tribal rights was a duty cast upon the kinsmen of the gwely. ”

“ The árborinn or ættborinn man, therefore, seems at last, at the moment when a full kindred of his own has risen up to swear for him and protect him by feud or wergeld, to have become clear from any claims on the master’s side. And accordingly if any claim be set up he has to prove his freedom by witnesses ‘that he can count four of his forefathers as árborinn men and himself the fifth.’ That is, he shows that his great-grandfather was a man with an ætt or kindred. If he can prove this he is free from any claim in regard to his leysing descent. ”

“ 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. ”

“ A blood relationship was established as regards children 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-called Laws of Henry I. was similar. ”

“ The solidarity of kindreds, taken together with the liability of individuals to take their share in the payments for which their kindred is responsible, corresponds to the solidarity of odal landholding, taken together with the individual rights of the odal-sharers. Unless every one in a kindred had his recognised tribal rights on the land, unless he were possessed of cattle and rights of grazing for their maintenance, how could he pay his quota of cattle to the hauld’s wergeld of 100 cows? ”

“ 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 until 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 still stronger when a tenant was under fixed obligations 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. ”

“ Whether the phrase ‘cro and galnes’ means two things or one thing, and if two things, what the distinction between them was, it is not easy to see. But evidently the two together made a single payment for each grade of rank. The payments, moreover, are expressed in cows as well as in ores and pence, and the payment of 100 cows seems to mark the thane as the typical and complete tribesman.
The two explanatory clauses introduce a third element, the ‘enach.’
The Cro of a woman having a husband is one third less than the husband’s cro, and if no husband she has the same cro as her brother. ”

“ The wife’s inheritance goes back to her kindred if no children born alive.
In the Liber secundus of the Alamannic law is an interesting clause which throws some light upon the position of married women.
(XCV.) If any woman who has a paternal inheritance of her own, after marriage and pregnancy, is delivered of a boy, and she herself dies in childbirth, and the child remains alive long enough, 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 inheritance then belongs to its father. ”

“ Clause 5 seems to state merely that the liability of the ‘proximiores’ is collective and not individual, so that the poorer in each group of relatives are to be assisted by the richer, and we need not dwell upon it.
If his kindred do not pay, the slayer pays with his life.
Lastly, Clause 6 brings the slayer, after all his efforts and appeals to his kindred, face to face with the final result. Four successive times his co-swearers have brought him up to the mallus to hold him to his faith, and now at last, if no one steps in to complete payment of the wergeld, he must pay with his life. ”

“ The joint property of husband and wife, even if not properly ‘defined,’ is recognised in the Scanian law as belonging to the sons of the marriage to the very limited extent that they may have equal shares with the other consortes whether uncles or cousins. The sons of the deceased brother when the grandfather is dead and division among the brothers comes in question are allowed by the clause in the Gulathing law to buy back their father’s share in the odal at a fifth less than its value instead of sharing in it as family property. ”

“ The clause pictures for us the family group as bound together by paternal rites (sacris paternis) . The grandfather is alive and is the paterfamilias. A son who is a filiusfamilias (i.e., as we shall see presently, not an emancipated son) has married and brought into the mansio, or family homestead of the grandfather, property which he had with his wife. [282] This, not having been ‘defined’ on marriage, so as to keep it separate, has become, in the phrase of the Latin text, ‘added to the property of the grandfather.’ The husband has died leaving several sons, it matters not how many. ”

“ The population of Scotland was so various in origin and language that it would be unreasonable to expect uniformity of custom. Even where Celtic custom was best able to hold its own there must naturally have been a mixture of Cymric and Gaelic elements. In districts, on the other hand, where Frisian and Northumbrian and Danish and Norse influences may have once predominated, whatever survivals there may have been of tribal custom from any of these origins may well have been afterwards submerged under legal forms and ideas from Anglo-Norman sources. ”

“ To save the life of a kinsman, kinsmen will sometimes exercise the option. And the slayer, before he flees for his life, will make his appeal to his kinsmen. The old traditional rules for payment will have force in the feelings of those who, under all the discouragements of the law, still choose to assist the slayer. Moreover, the Mallus, it appears, still exercised jurisdiction over the option.
This celebrated clause may perhaps therefore be quoted as evidence for so much of ancient tribal custom as to wergelds as the royal edict was unable to extinguish all at once. ”

“ Three hundred and sixty gold solidi for a thumb and 260 for the little finger of a nobilis are quite impossible fines. The little finger of the Saxon nobilis cannot have been valued at more than the ordinary freeman’s wergeld under the Salic and Ripuarian Laws.
We conclude then that, in spite of the last clause in the law, these values, both for wounds and homicide, are silver values, and that the figures in the text have at some date or other been substituted for the original ones to meet the change in the currency. ”

“ Now when these remarkable survivals of tribal custom are found still remaining in the laws as to odal and odal-sharers and the right of kinsmen who would have to pay wergeld to redeem odal, so that it may be kept within the ring of odal-sharers, they cannot [276] be regarded as laws framed to meet the needs of individual landownership. They come down in the laws as survivals of family ownership under tribal custom, the principles of which are by no means wholly obsolete, even though society may have passed onwards some stages towards individual landownership of the more modern type. ”

“ It is not easy to draw a distinction between the ‘wealh’ and the ‘Wilisc’ man. ‘Wilisc’ is certainly used as the adjective corresponding to ‘wealh,’ though sometimes (as e.g. in ‘Wilisc ale’) for something specially Welsh. In the Lex Salica, as we have seen, the Gallo-Roman living under Roman law, according to the Malberg gloss was a ‘Wala’ with a wergeld half that of the ‘ingenuus’ living under Salic law. ”

“ 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 lie in the difference between the tribal notion of service and freedom and the more modern one. ”

“ The homicide of a kinsman was apparently still generally free from judicial interference or criminal law. The slayer is handed over to the Church and his punishment is spiritual penance. Even the manbot to the lord who has lost a man through his crime fails to be paid. But should there be a fear of trouble through the importunity of any of the kinsmen of the slain demanding compensation, then a compromise was to be effected by reference to the judgment of wise men. ”

“ The crime of homicide within the near family was dealt with in the Alamannic law in conformity with ancient tribal custom. There was no wergeld in such a case.
If any man wilfully kills his father, uncle, brother, or maternal 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. ”