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

And in the Codex Lindenbrogius:[166]—

According to the original final clause, if it had been followed in the text of the Lex Saxonum the wergelds ought to have been stated in gold solidi of two tremisses, representing the bullock, or a sheep with her lamb. And the lesser penalties for wounds, &c., should have been stated in solidi of three tremisses, representing the ox of 16 months. These values in gold tremisses would then have been consistent with that of the full-grown four-year-old ox as stated in Tit. VI. at two solidi—i.e. the normal value of the ox before the change in the currency.

But, as it is, the text is not consistent throughout. Returning to the statement of the wergelds:

we are struck at once with the excessive amount of that of the nobilis. But if the solidi were of two tremisses, as they should have been, then, translated into solidi of three tremisses, the amounts would stand thus:—

These amounts appear to be still far too large; whether regarded in cattle or in gold.

It seems probable that, in spite of the last clause, the wergelds of the Lex Saxonum, in the text as we have it, are described in Charlemagne’s silver solidi of 12d.—the solidi which at the moment he was trying at a ratio of 1:4 to substitute for gold.

Very nearly contemporary with the Lex Saxonum is Charlemagne’s Capitulare de partibus Saxonie, A.D. 785.[167] In this document no wergelds are mentioned, but other fines are described which may be compared with them. And it will be noticed that three classes are mentioned—nobilis, ingenuus, and litus.

In s. 19, for refusal to baptize an infant within a year of birth:—

So again in s. 20 for illicit marriage, and in s. 21 for engaging in pagan rites:—

These fines were evidently payable in the silver solidus, for in s. 27 the penalty for a man remaining at home contrary to the bann was to be 10 solidi or one ox. Obviously this is the value of the ox in silver solidi before they were made legal tender. Its gold value was only 2 solidi, as stated in Tit. VI. of the Lex. And, as we have seen, the value of the ox in the silver solidus of twelve pence was maintained at an average of about 8 solidi.

Twelve years later in date another Capitulare was issued, entitled Capitulare Saxonicum and dated A.D. 797.[168] It was the result of a conference and contract between Franks and Saxons of the three tribes, Westfali, Angrarii, and Ostfali. According to s. 3 the Saxons agreed that whenever, under the laws, Franks had to pay 15 solidi, the Saxon nobilis should pay 12 solidi, ingenui 5 solidi, and liti 4 solidi.

Then follows a clause which is interesting as showing that the payment of wergelds still was a general practice. It enacted that when a homicide had occurred and a case had been settled in a district by the neighbours, the pacificators should, according to custom, receive 12 solidi for their trouble (pro districtione), and in respect of the wergeld (pro wargida) they should have sanction to do what according to their custom they had been used to do. But if the cause had been settled in the presence of a royal Missus, then it was conceded that on account of that wergeld the neighbours should still have their 12 solidi; and that the Missus of the King, for the trouble taken in the matter, should receive another 12 solidi, ad partem Regis. In clause 7, homicide of a Missus regalis, or theft from him, was to be paid for threefold.

Further, in Clause 9, the King, with the consent of Franks and Saxons, was to have power at his pleasure, whether propter pacem, or propter faidam, or for greater causes, to double the amount of the usual bann of 60 solidi, making it 120 solidi, and to insure obedience to his commands by any amount up to 100 or even 1000 solidi.

Lastly, in the final clause is the following:—

So that in this Capitulare of A.D. 797, issued just before Charlemagne became Emperor, there is the clear statement that the one-year-old bullock is still to be reckoned as one solidus, and the further statement that in silver 12 pence make the solidus. And this in a clause headed with the words: ‘Moreover it is to be noted what the solidi of the Saxons ought to be.’

The fact therefore seems to be that these Capitularies relating to the Saxons, and the Lex Saxonum, following upon the Conquest of the Saxons, date from the middle of the time when the change in the currency from gold to silver was taking place, and the silver solidus of 12 pence, first of Merovingian standard and ultimately of the nova moneta, was by law made equivalent for payments to the gold solidus of the Lex Salica of three gold tremisses or of 40 pence.

Now, having derived this information from the Capitularies, let us turn back to the laws.

In Tit. I. De vulneribus, the penalty for destroying another’s eye is 720 solidi, exactly half the number of solidi in the wergeld of the nobilis, and for both eyes 1,440 solidi—i.e. exactly the amount of the whole wergeld of the nobilis. These proportions are found in several other laws, and were quite natural if the payments were made in both cases in the same solidi. But these wounds ought, according to the final clause in the law, to have been paid for in the solidus of three tremisses, while the wergelds should have been paid in solidi of two tremisses.

Clearly they are not stated in different solidi, for if for a moment we take them to be so, then the two eyes of the nobilis would be paid for at a higher value than his life.

Further, if we look at these payments for wounds carefully, it becomes clear that they cannot be gold values. Three hundred and sixty gold solidi for a thumb and 260 for the little finger of a nobilis are quite impossible fines. The little finger of the Saxon nobilis cannot have been valued at more than the ordinary freeman’s wergeld under the Salic and Ripuarian Laws.

We conclude then that, in spite of the last clause in the law, these values, both for wounds and homicide, are silver values, and that the figures in the text have at some date or other been substituted for the original ones to meet the change in the currency.

Let us try to realise what the effect upon the wergelds of the Lex Saxonum would be of Charlemagne’s substitution of the silver solidus of 12d. for the gold solidus.

Up to this time the wergelds had been paid in bullocks valued in gold at the solidus of two tremisses, and the equation was one no doubt of ancient custom. Now the Capitularies made them payable in silver at 12d. to the solidus.

One result became at once apparent. In the Saxon district the value of the ox went up, as we have seen, from two of the gold solidi to ten of the new silver solidi—an excessive rise, no doubt, and one likely to startle everybody. As regards most debts the change did not matter very much. The debtor got the advantage. But as regards wergelds hitherto payable in cattle and in gold it mattered very much indeed. It meant that a wergeld of 100 head of cattle could be paid in silver at one third of their value. And Charlemagne’s advisers soon found this out. What if a Frisian or a Saxon killed a Frank? Was he to be allowed to escape with a silver payment of one third the value of the cattle? Certainly not; and so, as we have seen in the Capitularies of 781 and 801 enforcing the receipt of the silver solidus of 12d. for all debts, an exception was made of wergelds payable by Saxons and Frisians who killed a Salic Frank. These were still to be paid for, as heretofore, in the solidus of 40d. of the Lex Salica—i.e. the gold solidus of three tremisses.

This, so far as the wergelds were concerned, set the matter right when a Saxon killed a Frank; but it did not set it right in the ordinary case of a Saxon slaying a Saxon.

How could this be remedied but by altering the figures of the wergeld and the compositions for wounds, and inserting silver values instead of the gold ones? This seems to have been clumsily done, the other clauses in the laws being apparently left unaltered or only partially altered. But assuming that the wergelds as they appear in the present text of Tit. II. are stated in silver solidi of twelve denarii, let us divide them by three, so as to restore them to gold values in solidi of three tremisses.

The wergeld of the nobilis of 1440 solidi divided by three becomes 480 solidi of three tremisses. And if, following very common precedents, we take this wergeld of the nobilis, whether from his noble birth or natural official position, to be a triple wergeld, then the missing wergeld of the liber or ingenuus would be 160 solidi, as the passage in the Ripuarian laws so often quoted declared it to be.

The wergelds would then stand thus:—

or in the local solidi of two tremisses:—

These then are the figures which, if we are right, were the original figures of the Title De homicidiis.

IV. LEX ANGLIORUM ET WERINORUM, HOC EST THURINGORUM.

We may probably follow Richthofen[169] in his conclusions that the Thuringians of these laws were the tribes settled with the Anglii and Werini in North Thuringia, and that they were promulgated under Charlemagne about A.D. 802.

In the first title the wergelds for homicide are stated:—

These are evidently unaltered gold values.

The rest of the first five titles relate to wounds, and we need only mention that the destruction of an eye, hand, or foot, or a blow causing loss of hearing, was to be paid for with half the wergeld of each class, following in this respect the custom of the Frisian and Saxon tribes.

These five titles in the Corvey Manuscript of the tenth century constitute a whole under the title ‘Lex Thuringorum.’ The remaining titles are, in this manuscript, added to the Lex Saxonum, to which, however, they do not appear to belong.

The triple wergeld of the Adaling of these laws may have been the result either of noble birth or official position, or both combined. The wergeld of the liber of 200 gold solidi, presumably of three tremisses, seems to connect the customs of the Thuringian tribes of these laws with those of the Salic and Ripuarian Franks rather than with those of the Saxons and Frisians. It is worth notice, too, that, while in the Lex Saxonum and the Lex Frisionum the figures seem to follow a duodecimal system, in these laws the more usual decimal reckoning is retained as in the Lex Salica.

The fact that among the additional titles there is one ‘De alodibus’ connects still further these laws, notwithstanding their later date, with the Salic and Ripuarian laws which contain similar titles. And it is worth while, for purposes of comparison, to give it at length. (Tit. v.)

As in the other laws so under these rules the alod clearly embraced both the land and the ‘pecunia’ and ‘mancipia’ upon it. Its object, like that of the similar clauses in the other laws and also like that of the Edict of Chilperic, seems to have been to protect the land in ordinary cases from passing over ‘from the spear to the spindle,’ while at the same time sanctioning inheritance by females even in the land of the alod when otherwise there would be danger of its passing away from the kindred altogether.

In certain cases the land of the alod was made to go to male heirs while the ‘pecunia’ and ‘mancipia’ upon it went to females.

Whether the word ‘pecunia’ in such cases should be translated by ‘cattle’[170] or the wider word ‘chattels,’ it must have included the cattle, and at first sight it is not easy to see how the rule would work which gave the cattle of the alod to a female and the land to a distant male heir. The cattle must in the nature of things have remained or be put upon land, and the awkward question arises upon whose land they remained or were put. And so we are brought once more to the practical question of the position of women in relation to the land. That in certain cases in default of male heirs they could inherit land is one thing; but this question of the cattle and slaves involves quite another.

When a sister received her portion or gwaddol under Cymric custom, and when she received so many cows for her maintenance from the chief of kindred, she must have had rights of grazing for her cattle in the family herd of her gwely. Till she married, her cattle would graze with the cattle of her paternal gwely; and when she married, with the cattle of her husband’s gwely. And so under the rules of this clause ‘De alodibus’ it does not follow that the distant male heir succeeding to the land of the alod was to evict her and her cattle from it. With the land he had to take also the responsibilities involved in the family holding. Clause V. states that to whomsoever the inheritance of the land shall come, to him ought to pertain the coat of mail, i.e. the birnie, and with it the duty of the chief of the kindred to avenge his kin and to see to the payment of wergeld if any one of the kin should be slain. Read from this point of view this clause ‘De alodibus’ becomes good evidence that, whatever changes may have been made as to female inheritance, the land of the alod had not yet lost all its tribal traits. It had not yet become the ‘res propria’ of an individual possessor under Roman law.

V. THE SO-CALLED LEX CHAMAVORUM.

This document, according to most recent authorities, relates to a district between the Frisians and Saxons to the North and East, with the river Meuse to the South.[171]

Its real title seems to be Notitia vel commemoratio de illa euva quæ se ad Amorem habet, and it seems to be not so much a code as a memorandum of the wergelds and fines of a Frankish people settled in the district alluded to. Probably in date it may belong to the time of Charlemagne, but before his changes in the currency.

It is of some interest to this inquiry because of its peculiar position, as relating to a tribe or people under Frankish rule, and yet with customs of its own which have survived Frankish conquest.

The Notitia starts with the declaration that in ecclesiastical matters, as regards the bannus dominicus, the same laws prevail ‘as other Franks have.’

And then it at once describes the wergeld, as follows:—

Then follows a clause (VII.) which states that if any ‘Comes’ be slain in his own ‘comitatus’ the wergeld is to be three times that according to his birth.

The Homo Francus thus has a triple wergeld, like the Comes. But the Comes may possibly be not ingenuus. He may be a lidus with official position, and so presumably, according to Clause VII., with a threefold wergeld of only 300 solidi.

In the next clause the Royal ‘Missus’ is put in the same position while on the King’s business. His wergeld is also to be trebled.

What, then, is the Homo Francus with a wergeld three times that of the ordinary ingenuus of the district of Amor?

The wergeld of the latter is the full normal wergeld of 200 solidi. The Homo Francus in this district was therefore very much above the ordinary freemen of other laws. He was evidently a Frankish landowner on a large scale, towering in social position above the ordinary freemen of the district.

The casa and curtis of the Homo Francus alone were protected by special clauses (XIX. and XX.), and of him alone are any hints given as to kindred or inheritance. Clause XLII., in the following few words, enlightens us as to his social position:—

We must probably consider the privileged position of the Homo Francus as presumably the result of Frankish conquest. The great landowner may have been the holder of a benefice, or a tenant in capite placed upon the royal domain with ministerial and judicial duties, and the triple wergeld may fairly be assigned to his official position.

But to return to the wergelds.

The payment pro fredo seems to have been equal to an additional one third of the wergeld.

From clauses XX. and XXXII. it appears that the value of an eye or hand or foot was one quarter of the wergeld, instead of half as in the Salic and Ripuarian Laws.

Theft was to be paid for ninefold with four solidi pro fredo.

The further clauses regarding theft in this border district of forests and cattle and mixed population are not quite easily understood, nor need we dwell upon them.

In c. XXX. the penalty for letting a thief go without bringing him before the Comes or centenarius was 60 solidi, as in the Ripuarian Laws.

VI. CONCLUDING REMARKS.

Before passing from the laws, the compilation of which seems to date from the conquests of Charlemagne, it may be well to note that, regarded from the point of view of the wergelds, the tribes whose customs have been examined in the last two sections seem to have belonged to the Frankish group with wergelds of 200 gold solidi, while on the other hand the Frisians and Saxons seem to have belonged to the other group with wergelds of 160 gold solidi.

This grouping of the tribes may not be exactly what might have been expected.

Geographically the Frankish group is sufficiently compact. The other is widely extended and scattered. Frisians and Saxons remain in their ancient homes. The Alamannic, Bavarian, and Burgundian tribes have wandered far away from theirs. But in their northern home they may have been once sufficiently contiguous to have shared many common customs and among them a common wergeld of 160 solidi.[172] Settled in their new quarters, the Rhine and its tributaries seem to have been the great highways of commercial intercourse and the connecting links between them. Immigrants from them all met as strangers (advenæ) in the Ripuarian district, and, as we have seen, we owe our knowledge of some of their wergelds very much to the recognition of them in the Ripuarian law.

CHAPTER VIII.
THE TRIBAL CUSTOMS OF THE OLDEST SCANDINAVIAN LAWS.

I. THE MONETARY SYSTEM OF SCANDINAVIA.

The facts needful for the understanding of the monetary system of the Scandinavian tribes need not detain the reader very long.

The weight system applied to gold and silver was that evidently derived from the Eastern Empire.

It consisted of the mark, the ore, and the ortug. The mark was divided into eight ores or ounces, and the ore or ounce into three ortugs, which were in fact staters or double solidi. The ounce being the Roman ounce of 576 wheat-grains, the ortug contained 192 wheat-grains, and was the exact counterpart in wheat-grains of the Greek stater, i.e. Professor Ridgeway’s ox-unit. Reckoned in wheat-grains, two Scandinavian marks of 8 ounces were, as we have seen, exactly equal to what the early metrologists called the (light) Mina Attica, which consisted of 16 Roman ounces or 9216 Roman wheat-grains. Four gold marks thus made a heavy gold mina, traditionally representing a normal wergeld of 100 head of cattle.

But this heavy gold Mina of four marks had been seemingly twisted from its original Greek character to bring it into consistency with Roman methods of reckoning. It was divided no longer into 100 staters, but now into 96 ortugs, so as to make the ortug double of the solidus and one third of the Roman ounce, thus throwing it out of gear, so to speak, with the normal tribal wergelds of 100 head of cattle. It was thus made to contain only 96 ox-units, although in actual weight its 32 Roman ounces really did contain, so long as the standard of the Roman ounce was adhered to, 100 Attic staters or ox-units.

That the light mina of two marks or 9216 wheat-grains had found its way by the Eastern trade routes into Scandinavia appears from its survival in the monetary system of countries on both sides of the Baltic to quite modern times.

In Northern Europe the pound of twelve ounces was not, as elsewhere, the usual larger unit. The pound of two marks or sixteen ounces had taken its place. And except in Norway and Denmark, which sooner or later adopted the monetary and weight system of Charlemagne, the ounce remained the Roman ounce of 576 wheat-grains. At the same time, as in the case of the Merovingian system, in spite of the Imperial influence of the gold solidus, there were evident marks of a tendency towards the ancient Eastern standard of the stater rather than the heavier standard of the double solidus. The ortug of 192 wheat-grains seems to have often sunk in actual weight below even the Attic weight to that of the ancient Eastern stater of 8·18 grammes.

Thus when the Russian weight system was recorded in the time of Peter the Great the unit both for precious metals and goods was found to be the Zolotnic or gold piece. Thus—

Here, then, in wheat grains the Funt is the light Mina Attica over again, Romanised in its divisions. The Zolotnic is the solidus or half-stater. But in actual weight the pound is exactly half of the ancient Eastern gold mina of 818 grammes.

The Pfund of Silesia (Breslau), according to Martini, was 405 grammes, and that of Poland (Cracow) the same. Only Sweden and Riga seem to have adopted or preserved higher standards, the double mark of Sweden being 425 and that of Riga 419 grammes; but even these fell far short of the standard weight of 16 Roman ounces, viz. 436 grammes. But throughout, low as the standard of the Baltic Funts or double marks may have been, they were divided according to the Roman commercial weight system into ores or ounces and loths or half-ounces, and gwentschen or drachmas of one eighth of an ounce, just as if they were of full Imperial weight. The marks and the ores remained, but the old division of ores into ortugs or staters had long ago disappeared.

The division into marks, ores, and ortugs was, however, in full force at the time of the Norse laws, both for gold and silver. And the evidence of actual weights seems to show, not only that for the purposes of the Eastern trade routes, reckoning in marks, ores, and ortugs was in common use, but also that the standard, like that of the Merovingian coinage, was the ancient Eastern standard.

Thus the following weights, believed to belong to the Viking period, from the island of Gotland, are now in the Royal Museum at Stockholm (Nos. 4752 and 5984).

The unit of these weights is exactly the Eastern stater of 8·18 or two Merovingian solidi.[173]

Whether this standard had been arrived at independently of the Merovingian standard, or adopted from it, we must not stop to inquire. It is enough that the ortug at the date of the laws through Roman influence had come to be reckoned as one third of the ounce.

Whatever may have been the early Byzantine influences and that of Eastern trade routes, long before the date of the Norse laws, Scandinavia had come under Frankish influences also.

Already during Merovingian times, chiefly through the Frisian mint at Duurstede, Merovingian currency had become well known on the Baltic, and we have seen that the first Scandinavian coins were copies from those of the Duurstede type. Hence it came to pass that in the most ancient of the Norse laws the old Scandinavian reckoning in gold and silver marks, ores, and ortugs had become connected with the Frankish currency. During the period of Merovingian influence the Merovingian ounce and the Norse ore were both, reckoned in wheat-grains, the ounce of the Roman pound, whatever may have been their actual weight. The mark of eight ounces contained 4608 wheat-grains of gold or silver. But at last, as the result of Charlemagne’s conquests in the North, his nova moneta with its higher standard was brought into contact with Scandinavia. His mark of eight of his ounces or 5120 wheat-grains ultimately superseded in Norway and Denmark the old mark of eight Roman ounces. Hence, as all the Scandinavian laws as we have them, are of later date than Charlemagne’s conquests, the question must arise, which of the two marks is the one in which the wergelds and other payments are described.

In the oldest Norse laws the wergelds are stated mostly in silver marks, ores, and ortugs. The ratio between gold and silver was 1:8, so that an ore of gold equalled a mark of silver, and thus the translation of silver values into gold is easy. The laws themselves, as we shall find, make this perfectly clear. A wergeld stated as of so many gold marks is divided in the details of payment into silver marks, ores, and ortugs at the ratio of 1:8.

II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAWS.

In approaching the consideration of the Scandinavian custom as to wergelds and the structure of tribal society as disclosed in the ancient laws, I do it with great diffidence, especially as, for the translation of Old Norse, I am dependent on others.

On the whole it seemed best to concentrate attention upon the Gulathingslög as the oldest of the Norse laws. The Danish and Swedish laws and the Grágás of Iceland no doubt under competent hands would yield valuable additional evidence, but the oldest of the Norse laws may probably be fairly taken as the most representative of early Northern custom, and at the same time most nearly connected with the object of this inquiry.

Geographically the Gulathing law was in force in the southern portion of Norway. It seems to have embraced, in about the year 930, three, and afterwards six, fylkis or districts each with its own thing and local customs.[174] In this respect it resembled the Frisian and Saxon laws, both of which recognised, as we have seen, the separate customs of tribal divisions contained in the larger district over which the laws had force.

The Gulathing law must therefore be regarded as in some sense a compilation or collection of customs rather than one uniform law. For instance, there are three or four separate descriptions of the wergeld and the modes of its payment and receipt. One of these is avowedly of later date. The older ones may probably describe local variations of general custom, belonging to one or another of the divisions, and even these bear marks of later modification and additions.

As usual, the introduction of Christianity was the occasion and perhaps the cause of the compilation, and therefore from the time of the formation of Dioceses by King Olaf (A.D. 1066-93) ecclesiastical influence must be expected. But on the whole this Gulathing law presents in some points a far more interesting and instructive picture of social conditions resulting from tribal custom than the laws of other tribes already examined of much earlier date.

The next important of the ancient laws of Norway is the Frostathingslög belonging to the more northerly district of Drontheim. Without pretending to have made it the subject of special study, I have here and there found it useful in elucidation of the Gulathing law, and as showing that tribal custom, though with local variations, was in force over a wider district than that under the Gulathing law.

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.’