TRIBAL CUSTOM IN ANGLO-SAXON LAW

TRIBAL CUSTOM
IN ANGLO-SAXON LAW

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

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

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

[All rights reserved]

PREFACE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONTENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. THE FRANKISH CURRENCY.

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

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

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

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